Fortenberry v. State

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 396, n. 88, 94 New; p. 397, n. 6. This is an appeal from a judgment in a habeas corpus proceeding, denying the appellant's petition therefor.

In the petition the appellant alleged that he was indicted by the grand jury of Marion county on the 17th day of December, 1926, on a charge of "false pretense," which consisted of giving a deed of trust to the beneficiary therein without disclosing a former deed of trust upon the same property given to another person at a prior date. The appellant alleged that on the 22d day of December, 1926, he was arraigned in the circuit court on said charge and pleaded guilty thereto and was sentenced to the penitentiary for a term of one year for said offense. Appellant alleged that he was absolutely ignorant of the effect of his plea of guilty and unacquainted with court proceedings, and that he had not been advised with reference to his case by an attorney. After entering said plea and sentence had been imposed, he filed a motion in the circuit court to set aside his plea of guilty, and prayed to be allowed to plead to the merits of the cause. This motion was never acted upon by the court, and there is nothing to show that the court's attention was called thereto. The motion failed to set forth that he was not guilty of the crime, and also failed to set forth the nature and character of defense that he expected to make. After court adjourned, appellant petitioned the court for a writ of habeas corpus, tendering a bond for his appearance at the next term of the court. In his examination, on the hearing of the habeas corpus proceeding, the appellant admitted that at the time he was arraigned the district attorney told him that he need not plead guilty unless he desired to, and there is no showing that the district attorney or any other public officer connected with the prosecution of the case induced him to enter a plea of guilty. He seems to have been advised to do so by some other parties who were in jail at the same time he was and who pleaded guilty to the offenses charged against them. InMastronada v. State, 60 Miss. 86, it was held that a person who pleaded guilty to the unlawful retailing of liquor and filed a motion to withdraw the plea before sentence and prayed to be permitted to plead to the merits of his case, the refusal of the motion by the court was not error, but was a matter in the discretion of the court because there was no showing that such person was not guilty of the crime, and that the court would not reverse the trial court unless a showing was made that the defendant was not guilty and a proper defense made to the charge. To the same effect is the case of Purvis v. State, 71 Miss. 706, 14 So. 268.

We think the application filed by the defendant was wholly insufficient, and the court would not have been warranted in setting aside the plead of guilty on the showing that he made in the motion. We also think that it was the duty of the defendant and his counsel to call the court's attention to the motion and have it acted on during the term of court, and, as this was not done, the motion should be treated as though it was expressly overruled.

The judgment of the lower court will therefore be affirmed.

Affirmed.