State v. Harvey , 128 S.C. 447 ( 1924 )

The opinion of the Court was delivered by

Mr. Justice; Watts.

This is an appeal from the refusal of his Honor to allow the defendant, H. Lee Harvey, to withdraw his plea of guilty. The defendant was indicted for violation of banking laws and pleaded guilty to the first and fourth counts of the indictment. He was sentenced by Judge Bowman. He appealed, and pending his appeal the appeal was suspended to allow him to make a motion before the Circuit Court to withdraw his plea of guilty theretofore made. That motion was made before Judge Johnson, on the grounds:

“ (1) That the defendant was misled, deceived, and taken ’ by surprise in entering his plea of guilty and in the sentence thereon.

“(2) That the defendant has a valid defense to the charges in the indictment if he should be permitted to' withdraw his plea and meet the charges on their merits before a Court and jury.”

The Solicitor was also notified that—

“The above motion and grounds will be based upon the record heretofore made and now on file in the Supreme Court, and upon the additional affidavits hereto attached and made a part of this record.”

Upon hearing the motion, Judge Johnson passed the order incorporated in the case by which he refused the motion and from which this appeal is taken. As to what took place when the defendant pleaded guilty before Judge Bowman and was sentenced by him is fully recited in Judge Johnson’s order refusing the motion, and his order will be reported.

Judge Bowman did not understand the facts of the case and called for information before passing sentence, as he had a right to do; but that information should have been obtained in open Court or in the presence of the defendant or his counsel.

Judge Bowman was in error in carrying the Solicitor and Haas into' his room and discussing the case with them, in the absence of the defendant or his counsel.

Where the liberty of a defendant is concerned and he is to be sentenced by the Judge, he has a right that everything appertaining to the case, in the way of evidence affecting the case, be open and above board and public, as under the rules of Court, when a party pleads guilty to an indictment, he can only introduce affidavits in mitigation of sentence; for this reason alone the sentence of Judge Bowman should be set aside, and we could remand the case for a resentence, and the Judge, who should pass it, could familiarize himself with the facts by inquiry in the presence of the accused or his counsel. But immediately after Judge Bowman had passed sentence upon the defendant the following occurred in Court :

“The Solicitor then announced that the next case to be taken up would be the case of State v. Wilson G. Harvey

This was the indictment charging Wilson G. Harvey with a violation of Section 258, the same section to which Peters and H. Lee Harvey had pleaded guilty. Counsel for defendant Wilson G. Harvey then made a motion for a continuance on the grounds that because of the failure of. five banks in Charleston .recently, the .mind of the public was saturated with a spirit of vengeance against all bank officers, and that his client could not at this time obtain a fair trial. After argument by the Solicitor against the motion:

“The Court: I think the motion should .be granted. I don’t think he could get a fair trial at this time. The mind of the public is saturated against bank officers. Sentiment rules the world. The motion is granted.”

While the right of the defendant to withdraw his plea of guilty is a matter within the discretion of the Court, we think in this case that the ends of justice would be best subserved by permitting the defendant to withdraw his plea of guilty.

The defendant, acting under the advice of counsel, pleaded guilty. He evidently has some defense, as his statement read to the Court shows. At the time he entered his plea, of guilty, Judge Bowman, when his attention was called to his statement, said:

“I care nothing for that statement read by him. That statement was prepared fqr a purpose.”

We think that ordinarily a party who pleads guilty to an indictment should not be allowed to withdraw his plea of guilty, after sentence, or that it should rest in the discretion of the Judge as to whether the Court should allow it or not; yet in this case, under all of the facts and circumstances as made by the record, we think -that the remarks of his Honor in continuing the Wilson Harvey "case shows that H. Lee Harvey could not hope at that time to obtain a fair trial before a jury, and actuated by that, and -under advice of counsel, he pleaded guilty.

We think the ends o'f justice would be best met by allowing him to withdraw his plea of guilty and enter a plea of not guilty.

The other exceptions are not considered, as under the whole case as made by the record the ends of justice would be promoted by reversing Judge Johnson’s order and remanding the case, allowing the defendant to withdraw his plea of guilty made before Judge Bowman, and to plead not guilty to the indictment.

The judgment is reversed.

Messrs. Justices Fraser, Cothran and Marion concur.