Commonwealth v. Ferguson , 1910 Pa. Super. LEXIS 230 ( 1910 )

Opinion by

Rice, P. J.,

A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion: Com. v. Ingersoll, 145 Mass. 381; State ex rel. v. Hudson Q. S.,46 N. J. L. 112; State v. Conway, 20 R. I. 270; Doughty v. DeAmoreel, 22 R. I. 158; United States v. Hartwell, 3 Cliff. 221-232; State v. Siddall, 103 Me. 144. This is the generally accepted view in the jurisdictions of this country where the practice of entering and accepting such plea is recognized: 12 Cyc. L. & P. 354; 29 Cyc. L. & P. 1053; 2 Ency. Pl. & Pr. 78; Wharton’s Cr. Pl. & Pr. (9th ed.), sec. 414. And it is the view recognized in Pennsylvania: Buck v. Com., 107 Pa. 486; Com. v. Holstine, 132 Pa. 357. It would seem that at one time in England the plea was accepted only in cases where a fine was to be imposed: 2 Hawkins’ P. C., c. 31, sec. 3. But in none of the above-cited American cases is it decided that if the court accepts the plea, ¡and the offense is punishable by imprisonment, the defendant may not be sentenced to imprisonment. On the contrary, the sentence under consideration in State ex rel. v. Hudson Q. S., 46 N. J. L. 112, as well as Com. v. Holstine, 132 Pa. 357, was to imprisonment. In the latter case the court said: “The defendant, appellant, was indicted in the court below for selling liquor without a license. To this indictment he pleaded non volo contendere. This, although not technically a plea of guilty, is so in substance, and justifies the court in imposing sentence.” This clearly implies that the sentence would have been supported by the plea even if the facts of the case had not been brought on the record.

But it is urged that the sentence was illegal because the record does not show by express words that the plea was accepted or was entered by leave of court. To this it is enough to say that there is nothing on the record, as there was in Com. v. Ingersoll, 145 Mass. 381, from which it may be inferred that the court entered judgment otherwise than'upon the plea or did not accept the plea. The plea indorsed on the indictment and signed by the defendant shows that it was entered on a certain date, and the docket entries show that on that day the defendant in open court pleaded nolo contendere, and that at a later date he was sentenced. In view of the state of the record, the action of the court in sentencing the defendant clearly imports an acceptance of the plea.

As this was not a case triable solely in the oyer and terminer, arraignment was not necessary. In the absence of anything to show the contrary, it is to be presumed that the plea was entered in open court, as the docket entries plainly show, and that the defendant was present in court when the sentence was imposed: Hazlett v. Com., 1 Pitts. 169; Holmes v. Com., 25 Pa. 221.

The only other objection requiring notice is that the record fails to show that the defendant was interrogated, before sentence, whether he had anything to say why sentence should not be imposed on him. In capital cases, it is essential that this- shall appear of record, but this is not the rule in misdemeanors. The record does not show, and it is not to be presumed, that the defendant was denied the right to be heard in mitigation of sentence.

All of the assignments of error must be overruled.

The judgment is affirmed, the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court, and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.