The conclusion reached by the majority supporting the ruling of the trial court *Page 87 permitting the State, against the accused's objection, to prove, from the record in the case, that he had previously in the Superior Court entered a plea of guilty to the same information upon which he was being tried, is in my opinion unsound in principle, unfair in its treatment of the accused, and contrary to the law.
The State, as I understand the finding, in the presentation of its case in chief offered in evidence the record of the Superior Court showing that the accused had pleaded guilty to the same information on which he was being tried, and had subsequently, by leave of the court, withdrawn that plea and entered a plea of not guilty. To this offer the accused objected, because (1) the former plea had been entered through a misunderstanding between him and the State's Attorney, and (2) it was immaterial and injurious to his rights. The overruling of these objections and the admission of this offer is assigned as a principal reason of appeal.
The State urges in its brief that the previous plea of guilty was admissible as a confession of guilt; that such a plea is an admission that the accused is guilty of the crime charged. The plea of guilty is a judicial confession — in effect it is conviction. The court should not allow an accused to enter a plea of guilty until satisfied that the plea is made freely, and with understanding, and without misapprehension. State v.Willis, 71 Conn. 293, 308, 41 A. 820. Bishop says (Bishop, New Criminal Procedure, Vol. 2, § 747) that from the custom of the court's serving as counsel to the prisoner originated the practice — of universal acceptance today — of permitting prisoners, not as of right, but whenever justice or humanity dictates, to withdraw any plea and substitute another. State v. Branner,149 N.C. 559, 561, 63 S.E. 169; 8 Amer. Eng. Ann. Cases, 237 note. Courts exercise this discretion when satisfied that the plea was not entered voluntarily, or *Page 88 resulted from ignorance, inadvertence, unfairness or deceit. State v. Maresca, 85 Conn. 509, 83 A. 635;Commonwealth v. Crapo, 212 Mass. 209, 210,98 N.E. 702; Lowe v. State, 111 Md. 1, 73 A. 637; 8 Amer. Eng. Ann. Cases, 238 note. They refuse to exercise their discretion where no cause is shown adequate for its exercise. Commonwealth v. Winton, 108 Mass. 485;Clark v. State, 57 N.J.L. 489, 31 A. 979; 8 Amer. Eng. Ann. Cases, 239 note. If, at the taking of the plea, it appears to the court that the plea of guilty is made under misapprehension or inadvertence, or is not voluntary, the court will not permit it to be entered. When it ascertains that the plea has been so entered, it will exercise its discretion and permit its withdrawal. Why? Obviously because there was no ground originally for permitting its entry. Justice compels the court to undo what had been wrongly done. When such a situation presents itself and the court refuses to exercise its discretion and permit the withdrawal, its action on appeal will be reversed as a manifest abuse of discretion.State v. Maresca, 85 Conn. 509, 83 A. 635. The case, after the withdrawal and the entry of a plea of not guilty, is in precisely the same condition it would have been in had the plea of not guilty been originally entered. The plea of confession has disappeared because justice required that it should go, and with it has necessarily gone, as an evidential factor, every fact which helped to make that confession admissible.
The State's Attorney does not suggest that the fact that the accused made this plea is admissible apart from its evidential value in proof of a confession. The opinion of the court says that it was by all the parties treated as an extra-judicial confession or admission. I do not so understand the record, and I cannot help but feel that such a claim is illogical and overlooks the basis upon which all such evidence is admitted. The *Page 89 statement made by the accused in open court confesses the crime and proves the record. It is a judicial confession, because made before the court. The record is conclusive evidence of it and the only method of proving it, and hence of proving what the accused did. The fact that a plea of guilty was made in court is not to be treated as an admission. The admission relates to facts that do not involve a criminal intent, while the confession is an acknowledgement of guilt. An admission is made against interest, while a confession must be affirmatively shown to have been made under conditions which would not induce a false statement. 2 Wharton on Criminal Evidence, § 622a.
Considerations of fairness would seem to forbid a court permitting a plea to be withdrawn for cause, and at the next moment allowing the fact of the plea having been made, to be admitted in evidence, with all its injurious consequences, as an admission or confession of guilt by the accused. The withdrawal is permitted because the plea was originally improperly entered. No untoward judicial effect should result from the judicial rectification of a judicial wrong. The majority hold that the fact that the former plea may be explained will be a sufficient protection to the accused. Such a ruling places upon him a burden of disproving a fact which does not exist, for the withdrawal eradicated it. It brings him before the jury under the heavy cloud of suspicion created by his plea of guilty, when he is entitled to come before the jury with the presumption of innocence shielding him. It makes him prove again that his plea was wrongly entered, when that fact has already been judicially ascertained and settled by a court of competent jurisdiction and cannot be opened unless a higher court finds an abuse of that court's discretion.
I cannot find, as the majority do, justification for *Page 90 this ruling in the practice of permitting, on appeal from a lower court, the plea of guilty to be proved in the higher court as an admission there against him. What the accused did in such a case in the trial court he did voluntarily, so far as that record shows. What he then did on the appeal he did voluntarily. At no stage has he been wronged, or a court been asked to rectify his inadvertent action and complied with his request. At no point has the plea in the trial court been withdrawn by order of court upon a finding that it had been wrongly entered.
The instances where this issue has been decided are very infrequent, although, it must be allowed, the instances where evidence of this character might have been presented must have been many. It is more probable either that prosecutors have withheld or courts have excluded such offers, than that they have been admitted and no redress been sought. Whenever the courts have spoken, or authors upon legal subjects have written, so far as I have been able to ascertain, they have agreed in condemning the admission against an accused of his withdrawn plea of guilty. 2 Wharton on Criminal Evidence, § 638, p. 1326, says: "Where a plea of guilty is withdrawn by the permission of the court, it is not binding as a confession, nor can it be used as evidence." 2 Ency. of Pleading Practice, p. 779, says: "The effect of withdrawing a plea is to render it functus officio, and it cannot afterwards be given in evidence against the accused." In 8 Ruling Case Law, § 77, p. 112, the authors say: "It is hardly necessary to state that where a plea of guilty has been withdrawn and a plea of not guilty entered, the plea of guilty is not admissible in evidence against the accused." 12 Cyc. p. 426, says: "A voluntary offer by the accused before trial to plead guilty on terms to the offense charged is competent as his admission, but a *Page 91 withdrawn plea of guilty in place of which a plea of not guilty has been substituted by leave of the court is not competent as an admission." Abbott's Trial Brief (Criminal Causes, 2d Ed.) p. 314, says: "A plea which has been held invalid, and superseded by the plea on which the accused is tried, cannot be read in evidence against him." In People v. Ryan, 82 Cal. 617, 618,23 P. 121, the accused was permitted to withdraw his plea of guilty and substitute a plea of not guilty. Their Penal Code provided: "The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted." This statute at most changes the common-law rule permitting the court to exercise its discretion upon cause shown by permitting the substitution as of right. It does not affect the point we are discussing. Of this substitution the court said: "The case stands thus, without the evidence of a withdrawn plea of guilty, for which, by authority of law and the court, a plea of not guilty was `substituted,' the defendant could not have been legally proven or found guilty. Can it be that a privilege thus conceded to a defendant of substituting one plea for another is to have the inevitable effect of defeating the whole object of the `substituted' plea? We do not think the legislature, in passing the law under which the defendant was allowed to nullify and render functus officio his plea of guilty by substituting or putting in place of it a plea of not guilty, intended to say that, notwithstanding such substitution and doing away with the first plea, it may be given in evidence and sometimes serve as the only conclusive proof of a man's guilt under the plea of not guilty." InPeople v. Cignarale, 110 N.Y. 23, 17 N.E. 135, a plea of not guilty to a charge of murder in the first degree was entered. Later on the accused was permitted to withdraw his plea and plead guilty to murder in the *Page 92 second degree, which plea was accepted by the court. Subsequently the court permitted the accused to withdraw this plea and substitute one of not guilty. To the claim of the accused that the acceptance of the plea of not guilty of murder in the second degree waived the right to subsequently claim conviction of murder in the first degree, the court said (p. 32): "The waiver wrought by the withdrawal of the plea involved the waiver of all which depended on the plea, and this included a waiver of the benefit of the implication which existed, so long as the plea remained, of an acquittal of the higher crime." In State v. Curtis, 28 N. Car. (6 Ired.) 247, 250, when the plea of guilty was stricken out, it was held that "the case now stands, as if no trial had ever been had." In State v. Meyers, 99 Mo. 107, 119,12 S.W. 516, the accused had pleaded guilty to the indictment when read to him, and this plea the court refused to accept. Upon the trial on a plea of not guilty the prosecution was permitted to prove the fact that the indictment had been read to the accused and that he had pleaded guilty thereto. The court held: "Such testimony should not have been admitted. . . . By refusing to receive the plea and granting the defendant a trial, this of necessity meant a trial with the issues of fact to be determined by the jury, and not to be determined by the previous plea of the defendant, which admitted all that the State desired to prove. In short, the trial court could not refuse to receive the defendant's plea of guilty at one time, and then use it against him, at another." The court refused to accept this plea for reasons that satisfied its discretion.
The court in the case at bar permitted the plea to be withdrawn for reasons which satisfied its discretion. In each case the plea never should have been entered. When withdrawn there was no plea. The cases then stood practically alike, with this difference, in the one *Page 93 case the facts surrounding the plea were matter of record, in the other dependent on oral testimony. But the admissibility of the facts of each plea is governed by the same identical principles, and the ruling of the Missouri court seems to me sound in law and wholesome in practice. Commonwealth v. Lannan, 95 Mass. (13 Allen) 563, 569.
In my judgment the ruling was erroneous and material, and a new trial should be granted.
In this opinion RORABACK, J., concurred.