I dissent from the conclusion reached by DAVID E. BLAIR, P.J., in holding that *Page 133 the withdrawal of the defendant's plea in abatement operated to withdraw his waiver of preliminary hearing.
I. The statute makes that provision for his benefit, so that he may ascertain what evidence the State has to produce against him. It is not a necessary proceeding unless he demands it.Waiver. He may feel that it is to his advantage to waive preliminary hearing, and he may waive it either directly or by conduct. In this case he waived it by his conduct. This is not disputed. The charge was preferred against the defendant in August, 1922. November 6, 1922, he waived the reading of the information and entered a plea of not guilty. This conduct is conceded to be a waiver of the right to preliminary hearing. More than two weeks afterwards he asked leave to withdraw his plea of not guilty, and the leave was granted. He claims by that act to have withdrawn his waiver. The plea of not guilty is not itself a waiver. The waiver is implied and is incidental. Can the withdrawal of the plea withdraw the incidents of the plea? Does the withdrawal of the plea withdraw the effect of the conduct which constitutes the waiver? This is analogous to the result which occurs in a civil case where a defendant who has not been served with process files an answer and thereby waives the service of process. He may withdraw his answer, but he cannot withdraw his appearance. By answering he waives any irregularity that might have occurred in the service, such as an improper sheriff's return or service out of the jurisdiction of the officer serving. By answering he waives all such irregularities. He may withdraw his answer, and demur to the petition. The demurrer would affect only infirmities appearing upon the face of the petition, not upon any proceeding subsequent or prior to the filing of the answer.
II. The general rule is that a waiver once made cannot be recalled either directly or indirectly. [People's State Savings Bank v. Railroad, 192 Mo. App. 631; Carp v. QueenWithdrawal. Ins. Co., 116 Mo. App. 543.] The appellant, with full knowledge of his rights, *Page 134 by his conduct waived his right to a preliminary hearing; having waived it he cannot recall it directly nor incidentally by some other act, any more than a defendant who has entered his appearance in a case can withdraw his appearance.
A waiver is sometimes defined as an election to dispense with an advantage which might have been insisted upon. [40 Cyc. 252.] An election once made is conclusive and cannot be recalled. [20 C.J. 38.] It is clear here that the defendant suffered no disadvantage, and does not claim to have suffered any, by failure to have a preliminary hearing.
III. The general rule is that a defendant in a criminal case is not entitled, as a matter of right, to withdraw a plea to an indictment or an information in order that he mayGranted file another plea, or interpose objections whichupon should have been presented before the plea. It wasCondition. within the discretion of the trial court to permit the plea to be withdrawn and to make conditions of its withdrawal. The excerpt from the record appearing in the majority opinion shows that on hearing the motion to quash, the court at first declined to allow the plea to be filed or presented on that ground, distinctly stating that the defendant had waived his right to preliminary hearing. Then the attorney for the defendant called the court's attention to the fact that the amended information had been filed by leave of court, to which there had been no plea, and consequently no waiver of preliminary hearing — this apparently upon the theory that the amended information charged an offense not charged in the original information. The court then permitted the motion to be filed for hearing upon all the grounds assigned. Of course, if the amended information had in fact charged a different offense from that charged in the original information, then the defendant would have been entitled to a preliminary hearing upon that charge and, having been deprived of it, his motion would have been well taken. That *Page 135 apparently was the reason why the court permitted him to file the motion; however, it turned out that the amended information did not charge a different offense. The court overruled the motion and in a succinct statement, which is set out in the majority opinion, gave his reasons for overruling it, relating the circumstances which showed a waiver of preliminary hearing by the conduct of defendant and his counsel. The proceeding at the time, including a colloquy between the court and the counsel, shows that the court did not intend to permit the defendant to withdraw his waiver; that the withdrawal of the plea was conditional, and the court consented to hear the plea on all grounds, including the alleged denial of a preliminary hearing, because an amended information was filed which turned out to be no amendment so far as its effect upon the charge is concerned.
The majority opinion does not consider any other point presented by the appeal, and bases the ruling discharging the defendant alone upon the want of preliminary hearing.
I have not examined the record to determine whether there are other errors which entitle the appellant to a reversal, but if there are none other than the alleged errors considered the judgment should be affirmed.