Lowe v. State , 111 Md. 1 ( 1909 )

This is an appeal from a ruling of the Circuit Court for Frederick County in the casse of the State v. James H.R.Lowe, overruling a motion filed by the traverser, now the appellant, "for suspension of judgment and sentence, and from the judgment of said Court in said case."

The facts are few and simple, but the question presented is new in this State, and is one of much importance.

The appellant was indicted by the grand jury of Frederick County, on February 12th, 1909 for burning an unfinished and untenanted dwelling house, the property of Edward H. Walter. At the same time, the grand jury indicted George T. Fisher for the same offence. It appears from the record that prior to the indictment or presentment of either of these parties, the appellant was summoned and called by the State's Attorney of Frederick County as a witness for the State while he was in the custody of the law upon the charge above stated, to testify in certain habeas corpus proceedings, upon the petition of said George T. Fisher, and that the appellant "then and there did testify, fully, truthfully, and at length as to all the facts touching the offense charged in the indictment in this case, which offense was, and is, the same charged against the said George T. Fisher, and which was then and there the subject of inquiry upon said habeas corpus proceedings, and the testimony so given by said traverser was given under a promise, implied in law, of the State's Attorney, that the traverser should be immune and exempt from prosecution on account of any matters disclosed in his said testimony given under said implied promise of immunity." It further appears from the record that on February 22d 1909, the plea of "guilty" was entered by the traverser in the case against him; that judgment of guilty was thereupon entered thereon by the Court, and that the trial of said Fisher for the same offence was at once taken up and proceeded with; that at the instance of the State's Attorney the traverser remained in Court for the purpose of testifying as a witness for the State against said Fisher, and that during the afternoon of the same day he was summoned, sworn, and testified in said case fully and truthfully as to his knowledge concerning said charge, and that this testimony was given under a promise of the State's Attorney, implied in law, of immunity from prosecution for his participation in said offence.

The record does not disclose whether Fisher was convicted or not, but the result of his trial cannot affect the question we are to determine.

On February 27th, 1909, after the conclusion of the trial of Fisher, the motion of the appellant for suspension of judgment in his case was heard, and thereupon his motion was overruled and he was sentenced by the Court to be confined in the Maryland Penitentiary for two years and six months.

The State now moves to dismiss this appeal because the record shows that the appellant entered a plea of "guilty," upon which plea the judgment was entered, and that from a judgment by confession no appeal lies.

We have examined the numerous authorities cited by the Attorney-General in support of this motion, but in none of them have we found presented the same question presented by the case now before us. The general proposition is, no doubt correctly stated in the passages cited by the Attorney-General from theEnc. of Pl. Pr. and from Cyc. and from the cases supporting that text, but this general principle is subject to qualification which is found in this case. Those passages are as follows:

"A plea of guilty is a confession of guilt, and is equivalent to a conviction. The Court must pronounce judgment and sentence as upon a verdict of guilty." 12 Cyc., 353.

"Where the defendant pleads guilty, it is the right and duty of the Court to pronounce upon him the sentence of the law without any further proceedings, and without any independent adjudication of guilt." 19 Enc. Pl. Pr., 437.

"It has been held that a party cannot have a judgment,properly entered in a plea of guilty, reviewed either by appeal or writ of error, since such judgment is in effect a judgment by confession." 19 Enc. Pl. Pr., 505.

The case of Edina v. Beck, 47 Mo. App. 234, may be taken as an example of the cases supporting the above text, the Court saying: "The appeal was properly dismissed unless we can hold that a party may appeal from a judgment properly entered against him upon his plea of guilty, which is in effect a judgment by confession."

The qualification to which we refer is distinctly indicated in the above citation from 19 Enc. Pl. Pr., 505, and in the quotation from Edina v. Beck, supra, in requiring the judgment to be properly entered in order that the effect of finality shall be given it. That the word, properly did not refer to the mere form of entry, but related to substance is made clear in both the above works in the paragraphs immediately following two of the passages above cited.

In 12 Cyc., 353, the text continues: "To authorize theacceptance and entry of a plea guilty, and judgment andsentence thereon, the plea must be entirely voluntary. It must not be induced by fear, or by misrepresentation, persuasion, or the holding out of false hopes, nor made through ignorance or inadvertence. The Court should be satisfied as to the voluntary character of the plea before giving judgment and passing sentence, and in some States such an investigation is required by Statute. In some States the statute requires the Court to admonish the defendant as to the consequences of the plea."

In 19 Cyc., 437, the text continues: "Before proceeding tomake such plea, the foundation of a judgment however, the Courtshould, and frequently by statute, must, see that it is made by a person of competent intelligence, freely and voluntarily,and with a full understanding of its nature and effect, and ofthe facts on which it is founded."

The bill of exceptions sets forth that at the hearing of the motion of the traverser for suspension of judgment and sentence it was agreed between the State's Attorney and the counsel for the traverser, with the consent of the Court, "that the facts alleged in said motion, and the additional reasons filed in support thereof, but not the conclusions of law drawn therefrom, should be admitted and treated as proved for the purposes of said motion and hearing, to the same extent as if said allegations of fact were proven at the hearing of said motion, said motion having been filed and heard pending judgment and sentence in said case." It will be seen that this exception is somewhat in conflict with another part of the record, the exception stating that the motion was heard on February 27, pending judgment in the case, while the docket entries show that judgment, guilty, was entered by the Court February 22nd — five days before the motion was heard, and three days before the motion was made. It thus affirmatively appears from the record that the entry of judgment immediately followed the tender and receipt of the plea, without any such consideration as we have seen should have been given before proceeding to judgment thereon, and it nowhere appears in the record that the traverser understood that the effect of the plea would be taken to be a waiver of the promised immunity from further prosecution, and that he intended thereby to make such waiver. It is impossible to conceive, in the face of his motion; that he did so understand and intend, and in the absence of evidence that he did, we cannot hold that the judgment was properly entered within the meaning of the authorities relied on by the Attorney-General, and if not so entered, this appeal cannot be dismissed.

It was however, confidently contended that even if the appeal should not be dismissed for the reason first stated, it must still be dismissed for the reason that the motion to suspend sentence was addressed to the discretion of the Court below and was overruled in the exercise of that discretion, which when exercised without abuse, cannot be reviewed on appeal or writ of error.

It cannot be denied, of course, that when a trial Court is acting upon a matter confided to its discretion, there is no appeal from its decision; and so, it may be conceded that inordinary cases the decision of the Court as to the suspension of sentence, whether upon the application of the prisoner, or because the Court is moved thereto of its own will, is not the subject of appeal. But when an accomplice, under an agreement or understanding with the prosecuting officer, approved by, or known to the Court, that he shall be immune from further prosecution, testifies fully and truthfully as to the whole matter charged, the case is not an ordinary case — coming within the general rule above stated. The effect of such an agreement or understanding, where the condition is fulfulled is to vest in the party anequitable right which is not the subject of discretion — because it rests upon contract express or implied. In such cases the exercise of discretion begins with considering whether the circumstances of the case are such as to justify the Court in permitting the accomplice to be sworn as a witness under an agreemnt, express or implied, that if he make full disclosure, he shall be exempt from further prosecution, and the discretion ends when he has fully and faithfully performed the condition. In the language of JUSTICE PUTNAM in Commonwealth v. Knapp, 10 Pick. 47: "He was safe, if he * * * would be true and faithful in the performance of his engagement." But, "the prisoner who does not conduct himself truly is not at liberty to take back the confession which he deliberately made. * * * If they refuse to testify or testify falsely, they are to be tried themselves, and may be convicted upon their own confession which was made after they were permitted to become witnesses for (the Crown) the State."

We shall not attempt to go into the learning upon this question which has been so thoroughly gone into by the Attorney General, but shall refer to a few leading cases only which we regard as controlling.

In U.S. v. Ford, 99 U.S. 594, the Supreme Court, speaking through JUDGE CLIFFORD, reviewed the authorities and delivered an elaborate and careful opinion. In that case the traverser pleaded the implied promise of immunity in bar of the prosecution, and the U.S. demurred to the plea, the demurrer being overruled by the Circuit Court for the Northern District of Illinois, and the Supreme Court reversed the judgment for error in this ruling, holding, as it seems all authorities hold, that such a plea is not good as a plea in bar. The Court, however, quoted with approval the practice as declared by Starkie, that "where accomplices make a full and fair confession of the whole truth, and are in consequence admitted to give evidence for the Crown, if they afterwards give their testimony fairly and openly, although they are not of right entitled to a pardon, the usage, lenity and practice of the Court is to stay the prosecution against them, and they have an equitable title to a recommendation to the King's mercy." The Court also cited with approval the case of Rex v. Rudd, Cowper, 331, which was an application on habeas corpus by an accomplice who had testified under an implied promise of immunity, to be admitted to bail pending an application for a pardon, which bail was refused onthe ground that she had not made a full and fair disclosure. In delivering the opinion of the Court, LORD MANSFIELD expressly declared that if she had come under circumstances sufficient to warrant the Court in saying that she had a title of recommendation to mercy, they would bail her for the purpose of giving her an opportunity of applying for pardon. In the case now before us it is a concession that this traverser does come under such circumstances, and in Ford's Case, supra, the Court proceeded to say that, "if an attempt is made to put the party to trial, in spite of his equitable right to pardon, he may move that the trial be postponed, and may support his motion by his own affidavit, when the Court may properly insist to be informed of all the circumstances. Power under such circumstances is vested in the Court in a proper case to put off the trial as long as may be necessary, in order that the case of the prisoner may be presented to the Executive for decision."

The Court in that case referred to People v. Whipple, 9 Cowen, 708, and U.S. v. Lee, 4 McLean, 103, saying that these cases did not support the proposition for which they were there cited, viz, that such a plea was good as an absolute bar to prosecution; but nevertheless approved expressly the practice indicated in those cases as the proper practice, saying: "Public policy and the great ends of justice, it was said in the second case, require that the arrangement between the public prosecutor and the accomplice be carried out, and the Court proceeded to remark that if the District Attorney failed to enter a nolleprosequi to the indictment ``the Court will continue the case until an application can be made for a pardon,' which of itself is a complete recognition of the usage and practice established in the place of the ancient proceeding of approvement."

In The People v. Whipple, supra, is a most learned and convincing consideration of the question we have here. In that case the question arose upon the motion of the District Attorney that Jesse Strang, who had just been convicted by the verdict of a jury as a principal in the murder of which Mrs. Whipple, the prisoner at the bar, was charged as an accessory before the fact, should be examined as a witness for the State, and should thereby, upon making full disclosure, become entitled to a recommendation for pardon. The Court, in the exercise of its discretion, inquired into the circumstances of the case, and from them determined that it would be an improper exercise of its discretion to admit him to that privilege, and therefore denied the motion.

JUDGE DUER said: "It is to be considered as if Strang had already been admitted as a witness, had testified for the people on the present trial, in the character of an accomplice; had told the whole truth to the satisfaction of the Court, and by himself or his counsel now claimed of us to suspend the sentence of thelaw, and recommend him for pardon. * * * Now upon what principle of good faith, public morality, sound policy, substantial justice, equitable right or strict law, could we deny this claim?" The Court said further that if it could be supposed that the Executive would not grant a pardon in such case, "the Court would nevertheless be bound most scrupulously to discharge its own obligations as far as they extend and as far as we have power. And if an accomplice perform the condition on which he is admitted as a witness for the people, according to its spirit, we hold ourselves bound in duty and in conscience to redeem the promise which the law raises in his favor, to the very letter. When we have done this we have performed our duty, and are no further responsible for the consequences." The proper practice in such cases seems to be quite uniformly settled — as stated inU.S. v. Ford, supra, either for the prosecuting officer to enter a nolle prosequi, or, upon his refusal or failure to take such course, for the Court to continue the cause to permit him to apply to the Executive for a pardon. Mr. Bishop so states it in his new Crim. Proc., secs. 1164 and 1166. In the latter section he states that where the accomplice has been indicted "he simply pleads guilty and then testifies. If his testimony is satisfactory a nolle prosequi or other form of discharge follows; otherwise, sentence is entered on his plea of guilty." In sec. 1164, Mr. Bishop says: "As he cannot plead his acquired right in bar, if the attorney for the State refuse to recognize it, the Court can only continue the case to permit him to apply for a pardon." In State v. Graham, 12 Vroom, 20, CHIEF JUSTICE BEASLEY cites with approval the case of U.S. v. Lee, 4 McLean, 103, in which the result was that the Court held that if the District Attorney should fail to enter a nolle prosequi that the cause should be continued until a pardon could be applied for, but suggested "that to discontinue the prosecution would be the shorter and better mode," and the Court also said in State v.Graham, supra, that the "only dissent from that general line of authorities was the case of Com. v. Dabney, 1 Rob. Va. 696, and that this deviation is in a great measure to be accounted for by the existence of a statute that materially modified the subject."

Our conclusion is that it was error under the circumstances of this case to receive the plea of guilty without being satisfied that the accused fully understood its nature and effect, and that he should be permitted to withdraw the plea, if he so elect, so as to give to the State's Attorney an opportunity to enter anolle prosequi if he deems that to be a proper course, or if he thinks it not proper to do so, that the Court may continue the cause until an application for a pardon is submitted to and acted upon by the Governor. Should the State's Attorney decline to discontinue the case, or should the Governor decline to grant a pardon, this Court will have discharged its duty and will be no further responsible in the premises.

Judgment reversed and cause remanded for further proceedingsin conformity with this opinion.