Defendant was convicted of arson in the fourth degree, was sentenced to imprisonment in the penitentiary for a term of two years, and has appealed. *Page 123
On November 6, 1922, defendant appeared in the circuit court in person and by counsel and waived the reading of the information and entered a plea of not guilty. Thereafter, on November 23, 1922, the case came on for trial, and the prosecuting attorney asked and was given leave to amend the information in particulars which are not here important and also to indorse names of certain witnesses thereon. Thereupon the following occurred:
"MR. HULSE: Defendant withdraws plea heretofore entered and desires leave to file motion to quash and plea in abatement.
"COURT: Leave is granted.
"Mr. Hulse reads motion to quash and plea in abatement."
The motion and plea in abatement, among other grounds, rested on the proposition that defendant had not been accorded a preliminary examination as provided by Chapter 25, Article 5, Revised Statutes 1919. Thereupon the following occurred:
"COURT: Hear you on the second ground.
"MR. HULSE: Think entitled to be heard on all grounds.
"COURT: You waived that by making plea.
"MR. HULSE: If we withdraw the plea by leave of court which has been done we — have authority, if withdraw the plea —
"COURT: Set aside the order granting leave, it is a waiver — set aside the order granting leave to file motion on that point; my view is, when enter plea of not guilty and had it set for trial and jury ordered to be here and try the case you had waived that point. If I had known when you asked for leave to file this motion that it contemplated that point I would not have given you leave because you had waived it.
"MR. HULSE: Authorities hold to this effect; that if we proceed to trial we waive it, that is as far as any case has gone, if proceed to trial and answer not guilty and so through the trial you cannot thereafter be heard to complain, can't raise it. *Page 124
"COURT: If you show me authority that holds you have not waived it by entering your plea, I will change this ruling freely and willingly, I have been under the impression entering plea is waiver.
"MR. HULSE: Here is another matter perhaps not occurred to the court; an amended information has been filed by the State and there has been no plea whatever made to that amended information; and we are certainly entitled now to raise any question that could ever have been raised in this case — information amended in material respect.
"COURT: That makes a difference, order last made set aside. You are granted the leave to file it. Motion to quash and plea in abatement is for hearing on all grounds assigned.
"MR. RENDLEN: I don't understand —
"COURT: The motion to quash and plea in abatement is for hearing on all grounds assigned."
Evidence was then introduced upon said motion to quash and plea in abatement. The trial judge announced his opinion that defendant had not been accorded such preliminary examination, but held that he had waived his right to such preliminary examination and said:
"Now the defendant entered a plea of not guilty on the day on which this case — the day he was arraigned, first day of the term — both he and counsel well knew at that time what transpired in the court of the Justice of the Peace Miller; they knew whether or not he had been accorded a preliminary examination such as the law entitled him to, his counsel well knew it; with that knowledge in mind the counsel and the defendant did not at that time refuse to plead to the information and ask leave to file motion to quash or plea in abatement, but on the contrary, entered a plea of not guilty, thus tender as law says, the issue, by so doing he waived this right to preliminary examination; that is a primary right that is accorded him if he sees fit to take advantage of it at the proper time and in the proper way; he waived it by tendering the plea of not guilty. That was the impression *Page 125 the court had when he read the plea in abatement. I have investigated the authorities since, and I am still of that opinion. Overrule the plea in abatement."
It must first be determined whether the trial court erred in holding that defendant waived preliminary examination under the circumstances above detailed. It is conceded by defendant that, when a defendant pleads to an indictment or information, he waives the right to a preliminary examination. With full knowledge that the plea in abatement was based upon the contention that defendant had not been accorded a preliminary examination, the trial judge granted defendant leave to withdraw his plea of not guilty and to file said motion to quash and plea in abatement. It was with such knowledge that the trial judge said: "The motion to quash and plea in abatement is for hearing on all grounds assigned."
It is the general rule that a defendant is not entitled, as a matter of right, to withdraw a plea duly made to an indictment or information for the purpose of filing a plea in abatement or interposing other objections which should have been raised before entering his plea. [16 C.J. 396; State v. Allen, 174 Mo. 689; Sunday v. State, 14 Mo. 417.] It is said in 16 Corpus Juris, at page 397, that "the withdrawal of a plea, being a `matter of favor,' the court has the right in its discretion to couple with its leave such conditions as it may deem proper." [See also Mills v. State, 76 Md. 274.]
The trial judge undoubtedly could have denied outright defendant's request for permission to withdraw his plea or could have permitted him to withdraw it upon the condition that he could not attack the proceedings prior to the filing of the information in the circuit court. But the court granted permission for the withdrawal of the plea unconditionally and gave defendant leave to go into all grounds assigned in the motion which he then knew contained the allegation that defendant had not been accorded a preliminary examination. *Page 126
The effect of such leave to withdraw and to be heard same position he would have occupied if he had filed such upon the plea in abatement was to place defendant in the plea before he entered his plea of not guilty to the information. Having exercised its discretion in defendant's favor, the trial court was bound to hear the matter contained in such plea in abatement and to determine it upon its merits as if such plea had been timely presented. To rule otherwise is to render meaningless all the cases holding that, after plea to the merits, a defendant may withdraw such plea by leave of court to file his plea in abatement.
No case on the exact point from our own jurisdiction has been found.
In the case of Drakopulos v. Biddle, 288 Mo. l.c. 435, a civil case, this Division said: "It is true that the permitting of amendments is largely within the sound discretion of the trial court. The court having exercised its discretion in plaintiff's favor and having permitted the substitution of the widow as party plaintiff, we are justified in assuming that it would not have stricken out the pleading except for the supposed departure. We are satisfied that was not a sufficient reason." In that case we held that the trial court erred in its ruling in striking out an amended petition after such amended petition was filed, not as a matter of right, but by leave of court in the exercise of its sound discretion.
In Sunday v. State, supra, this court said: "There is nothing wrong in the action of the court in striking out the plea of misnomer. The defendant should have relied on his plea in abatement at first, by then pleading it, instead of pleading not guilty; or if he wished to test the validity of his plea, after having pleaded not guilty, he should have moved the court for leave to withdraw the plea of not guilty and for permission to file his plea in abatement. This he failed to do, and he has no reason to complain that the court unceremoniously cut out his plea thus improperly filed." *Page 127
In State v. Taylor, 57 W. Va. 228, defendant was charged with murder and entered a plea of not guilty, which was afterward withdrawn by leave of court. Defendant then offered to file a plea in abatement challenging the regularity of the organization of the grand jury which returned the indictment against him. The trial court refused to permit the plea in abatement to be filed and such ruling was assigned as error. POFFENBARGER, J., said: "I think the plea came too late and was properly refused for that reason, but my associates are of a different opinion. They do think that, after the plea in bar had been entered, the court had discretion to refuse to allow it to be withdrawn and the plea in abatement entered, but they think that, as the court permitted the former to be withdrawn, it had not discretion thereafter to refuse to entertain the latter."
We therefore hold that, when the trial court granted defendant leave to withdraw his plea of not guilty, and to file and be heard upon his motion to quash and plea in abatement, the previous waiver of the right to a preliminary examination was also withdrawn and the trial court should then have passed upon the merits of such plea in abatement.
Of course, if the evidence adduced upon such plea shows that defendant was in fact accorded a preliminary examination, as provided by Chapter 25, Article 5, Revised Statutes 1919, the foregoing error was harmless. It must, therefore, be next considered whether such preliminary examination was accorded to defendant. Before discussing this point, it is necessary to state that defendant was charged with burning several stacks or ricks of wheat belonging to a neighbor living upon an adjoining farm. The fire occurred on the evening of August 11, 1919. Defendant was arrested and appeared before a justice of the peace on August 8, 1922. Through inadvertence or inattention to the rapidly approaching bar to prosecution afforded by the Statute of Limitations, the preliminary examination was allowed to be set by agreement for August 17, 1922, at a time when it would be too *Page 128 late to institute a prosecution against defendant for such arson. This was so because the institution of a criminal prosecution dates from the filing of an information or the finding of an indictment, and not from the date the affidavit is filed with the justice of the peace. [State v. Criddle, 259 S.W. l.c. 430, and cases cited.]
The prosecuting attorney soon discovered his predicament and on August 11, 1922, caused defendant to be brought before the same justice of the peace upon the charge of poisoning horses. When he got him in said court he called defendant's counsel by telephone, explained the situation and insisted upon holding the preliminary examination upon the arson charge that day instead of August 17th. Counsel stood upon the agreement as to setting of the case and refused to waive the rights of his client and also pleaded an engagement elsewhere which prevented his attendance. The prosecuting attorney told counsel of his intention to proceed nevertheless. He thereupon dismissed the complaint upon which the preliminary examination had been set for a later date and filed a new affidavit with the justice, charging defendant with the same arson, and caused his arrest upon a warrant issued thereon, and proceeded to hold an alleged preliminary examination upon such new complaint.
The foregoing facts were developed without substantial controversy at the hearing upon the plea in abatement and are gleaned from the bill of exceptions. It also appears without contradiction that defendant said he was not ready to proceed at that time with the preliminary examination. The prosecuting attorney and special counsel for the State testified that they did not recall defendant stating that he was not ready because his counsel was absent or because he had no opportunity to procure the attendance of witnesses. However, a number of witnesses for defendant testified positively that defendant said he was not ready and had no attorney and no witnesses and it is clear from the great preponderance *Page 129 of the testimony that such was defendant's announcement when the case was called for hearing.
The docket entry of the justice of the peace shows that the first complaint was dismissed by the prosecuting attorney upon his own motion, the defendant being present and making no objection. The docket entry made concerning the filing of the second complaint and the holding of the alleged preliminary examination thereon shows that defendant entered a plea of not guilty and that the justice of the peace accorded to defendant the right to a preliminary examination, "the defendant appearing in person without an attorney and making no objection to holding said preliminary hearing."
As a witness the justice of the peace testified that he did not remember defendant saying anything except that he was not ready. He did not remember anything being said about absence of counsel or witnesses. The justice of the peace was also a merchant and was waiting upon his customers from time to time during the occurrence of the events which are in controversy. The trial judge was of the opinion that defendant was not accorded a preliminary examination as provided by law. We quote from the bill of exceptions which sets out his ruling as follows:
"It is very clear to the court that this defendant was not accorded a preliminary examination prescribed by law. I take it it is unnecessary to go into all the details of the reasons that moved the court in reaching that conclusion. However, I will state briefly that the State, with the knowledge of the time of the commission of the alleged offense, if it was committed, proceeded to file an information — affidavit — before the justice of the peace as basis for preliminary hearing; filing it on the 8th day, I believe it was, of August of this year; defendant was arrested and appeared before the justice, and by consent appeared there, I believe the record says in person and by counsel. (MR. HULSE: No sir, I never was in court). And by agreement with defendant and prosecuting attorney *Page 130 the day for preliminary hearing was continued to August 17th. Mr. Stout at that time knew that Mr. Hulse was counsel for the defendant and made that agreement knowing it. In the meantime I apprehend that Mr. Stout discovered that limitation was about to run on this prosecution and he conceived the idea of starting a new prosecution and getting out from under this continuance; with that purpose in mind he prepared an information and made affidavit to it before the deputy circuit clerk on the 10th day of August, but he did not file it, merely made affidavit and withdrew it, same as if sworn to before another officer, so the paper had no life at that time as a paper. I take it it was not necessary for him to make affidavit to the paper. The information alleges that it is made upon his official oath without additional affidavit, as I recall the law. Now afterwards, the next morning, for the purpose of having the information filed on that day, the 11th, at an hour subsequent to the time of holding of the preliminary examination, which he then had in mind to have held by Justice Miller on a new affidavit which he then contemplated filing before the justice, he left this paper with the deputy circuit clerk with instructions to file it when he should call him up and further instruct him so to do, he goes to Ilasco and in the meanwhile having sued out another prosecution, made another affidavit against the same defendant, charging a separate and different offense, that is of poisoning animals, and knowing of the issuance of the warrant perhaps and of the fact that defendant was retained under the last-mentioned warrant, prosecuting attorney dismisses this new — this old — charge, first charge filed on the 8th, but the record says, `Defendant makes no objection.' Defendant is not learned in the law, having counsel absent as the justice and the prosecuting attorney well knew, he was not required to make any objection to the dismissal. It was in his favor, did not waive his rights if he did fail to make objection. While being held under the poisoning charge he was proceeded against in the known absence of his known counsel and required to remain *Page 131 to the preliminary held by the State over his protest, that was in effect no preliminary as contemplated by the law. The law means to give every man a chance to present his defense. They gave him no chance, necessarily unprepared by reason of having had the original case continued to the 17th; not required to be prepared until the 17th had arrived, he was compelled to remain to the trial and bound over."
It must have been anticipated that the alleged preliminary examination might be challenged, else why the recital in the docket entry of the justice of the peace that defendant made no objection to the holding of the examination when it was conceded by everyone present that defendant had asked for the postponement of the examination because he was not ready?
Suggestion is made that defendant had his witnesses with him at the preliminary examination. This is altogether unlikely, because defendant did not expect the original complaint to be heard until August 17th, and it does not appear that he had any advance information that a new affidavit was to be filed against him. The testimony shows that the persons who accompanied him to the justice of the peace court were either close relatives or proposed bondsmen on the horse-poisoning charge.
Section 3819, Revised Statutes 1919, provides for continuance from time to time to enable the accused to procure the attendance of witnesses in his behalf. Section 3822 provides that the justice of the peace shall allow the accused reasonable time to advise with his counsel and for that purpose to send for counsel, if accused requires it. It is therefore clear that defendant was entitled to be represented by counsel and to have sufficient time to procure the attendance of his witnesses. These rights of defendant were entirely and unceremoniously denied. In agreement with the trial court we hold that it is very clear that defendant was not accorded a preliminary examination, as prescribed by law. *Page 132
Nor can the argument of the exigencies of the situation in which the prosecuting attorney found himself be permitted to deprive defendant of his clear right to a preliminary examination, aided by counsel and with his witnesses in attendance. The law requires that the right to a preliminary examination be accorded accused before the prosecuting attorney may file his information charging him with a felony. [Sec. 3848, R.S. 1919.] Prosecutions for a felony such as arson must be instituted by the filing of an information (or finding of an indictment) within three years after the commission of the alleged offense. The Legislature must be held to have contemplated that sufficient time elapsed within such three-year period for all the necessary preliminary steps to be taken before the information or indictment must be filed on or before the last day of the three-year period. In other words and in practical effect, the Statute of Limitations runs short of such three-year period by just so much time as is necessary to accord accused a preliminary examination or for the convening and organization of a grand jury and the finding of an indictment by it.
Such being our view of the alleged preliminary examination, it becomes unnecessary to consider other assignments of error. Under ordinary circumstances, the errors above pointed out could only result in the reversal of the judgment and remandment of the case for further proceedings. But under the situation here presented, an order remanding the case would be useless. It is now too late to accord defendant a preliminary hearing and thereafter file an information and prosecute same, because prosecution upon such charge is already barred by the Statute of Limitations.
It is, therefore, ordered that the judgment be reversed and that defendant be discharged. Walker, J., concurs; White, J., dissents in separate opinion.