I dissent from the opinion of the majority. The defendant was charged with the crime of murder. An attorney was appointed to defend him. He was advised by his attorney that if he would plead guilty and place himself at the mercy of the court, the death penalty would probably not be inflicted, but that if he insisted upon a jury trial and the jury found him guilty, *Page 415 the court would direct an order fixing the death penalty. The statements by himself and counsel are not precisely to that effect but impliedly so, and at least the defendant in making his election well understood that there was doubt as to what would be the judgment as the result of his plea even if it were that of guilty. He knew he was taking chances, and now that the court has sentenced him to death, he asks to withdraw his plea and rely upon the sympathy of the jury instead of the judge. In other words, he gambled and lost, and now he wants to welsh. His attorney, in order to save his client's neck, now unselfishly attempts to assume the sole responsibility notwithstanding it clearly appears the defendant knew he was taking chances when he pleaded guilty.
Judge Leiper appreciated the fact that this was a cold-blooded murder without any reasonable excuse, and with full knowledge of the circumstances he undoubtedly believed that the maximum penalty was due the defendant. If the precedent is to be established that the most cold-blooded murderer may buy off the court by pleading guilty, it will seriously tend to diminish the fear of the death penalty by the most hardened criminals who, measuring the possibilities in advance, rely upon the practice to escape death for their crimes.
Judge Leiper undoubtedly measured all the facts and circumstances and considered the injustice of imposing the cost of giving this man a new trial before a jury just for the purpose of learning whether the jury or the judge would, after trial, remit the death penalty, but instead send him to the state penitentiary for life; in other words, the people of the county are to bear the expense of this gamble and become a loser in any event. The murderer has all to gain and nothing to lose. If this practice proposed in this case is to be approved by this court, it amounts to notice to all attorneys that they may advise their clients, and the layman may depend on the principle, that the man who commits a most cold-blooded murder may plead guilty and need not hang for the crime but instead get a penalty for life with a hope for future clemency. I cannot subscribe to that principle or *Page 416 practice, and, therefore, dissent from the order allowing this defendant to withdraw his plea of guilty so that he may thereby get another chance.