People v. Steinmetz , 240 N.Y. 411 ( 1925 )

The defendant when arraigned pleaded not guilty. Thereafter by permission he withdrew this plea and pleaded guilty to larceny in the second degree. Section 337 of the Code of Criminal Procedure provides that the "court may, in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted." Similar power has been exercised by the courts in all jurisdictions even without statutory grant. In the exercise of its discretion the court in this case permitted the withdrawal of the defendant's plea of guilty and the substitution of the plea of not guilty. The defendant has been convicted after trial upon the substituted plea. At that trial the People were permitted to show that the defendant had previously interposed and then withdrawn the plea of guilty. While the evidence was introduced upon the defendant's cross-examination, the question presented upon this appeal is not whether the evidence is relevant or material but whether it is competent and I think we are agreed that the same considerations govern its competency regardless of the point in the proceedings at which it was introduced. It cannot tend to discredit or contradict the defendant in his denial of guilt unless it was competent as evidence to show a previous admission or confession of guilt.

We may not upon this appeal question whether the trial judge has properly exercised his discretion. He has permitted the withdrawal of the plea of guilty and thereby effectively destroyed it as part of a judicial record upon which judgment might be entered. Concededly the withdrawn plea is no longer conclusive but it is said that the favor, which the court has accorded the defendant under the power expressly conferred upon it, does not destroy such logical probative force as might reasonably be given to previous admission or confession and the withdrawn plea is, therefore, admissible in evidence, to be given such force and effect as the jury may determine it has under all the circumstances. I may concede that a confession even though withdrawn, may under certain circumstances have logical probative force. The plea of guilty solemnly delivered in open court, recorded in the presence of a conscientious and painstaking judge is a confession of guilt and "confession was always regarded as the highest kind of conviction" (People ex rel. Hubert v.Kaiser, 150 App. Div. 541; affd., 206 N.Y. 46), but the same court which in this case has taken the plea has, in the exercise of its discretion, destroyed its force as a plea. I may concede that the fiat of the State uttered by court or Legislature cannot give logical probative force to evidence which lacks such force or destroy the probative force which evidence may logically have. In the domain of pure reason the sovereignty of the State is not recognized. The admissibility of evidence is not, however, determined solely by its possible logical results. The courts have evolved and the legislatures have created rules of evidence by which classes of evidence are excluded, though in particular instances the evidence might have logical probative force, when it appears that in general such evidence is too unreliable to form any basis for a conclusion, or tends unduly to confuse or prejudice the jury, or when its production would contravene some consideration, real or assumed, of public policy. In its own tribunals the State may decide what kind of evidence may be excluded as incompetent regardless of its logical force, in accordance with practical considerations. Our determination of the question of the admissibility of the earlier plea regarded as a confession or admission must depend primarily, not upon the possible logical probative force of the evidence, but rather upon whether the favor extended to the accused of withdrawing his previous plea did not, by necessary implication, include the favor that he was to be restored to the same position as if the plea had never been offered.

We must assume that the court did not abuse its discretion in granting the favor but held the scales of justice even. If the court was convinced beyond question or doubt of the guilt of the accused and of the fact that the confession of guilt was made with intention and understanding, reason to permit the withdrawal of the plea fails. When the permission is granted the court necessarily decides that there shall be an actual trial of the guilt of the accused because there is doubt of whether the plea was made with understanding and intent to confess a crime which the accused had actually committed. The court acts to protect an accused who has perhaps made an untrue confession. May the confession which the court has decided it should not act upon thereafter be used as evidence, even though not conclusive, of the defendant's guilt? If made without understanding and intention to confess actual guilt, it does not tend to establish guilt. If made with such understanding and intention, its logical probative force is so great that it would seem almost playing with words to say that it is not controlling. There is no third hypothesis; no ground for giving the confession lesser force. The defendant testified in this case that the plea was based upon his mistake and he never intended to plead guilty. His testimony was not denied and probably could not have been denied even if untrue. To some extent surrounding circumstances corroborated him. The plea was withdrawn promptly when a probation officer told him that he had pleaded guilty. Though the judge who took the plea held the explanation constituted sufficient ground for permission to withdraw the plea, the jury was permitted to speculate as to whether the plea was made with understanding and intention. In spite of the charge of the trial judge that the accused was entitled to the presumption of innocence, the admission of the previous plea which placed upon the defendant the burden of explanation effectively destroys the presumption. The favor of permission to withdraw a plea, which it is claimed is not a true confession, is of little value if the withdrawn plea may be used to nullify the substituted plea. When the State allows a man a trial, the trial should be fair; when the court decides that in the interests of justice a plea may be withdrawn because there would be possible danger of injustice in acting upon it, the accused should be placed in the same position as if the plea had never been made. The trial should be held for the sole purpose of determining the guilt of the accused and not for the purpose of determining as a preliminary matter whether the withdrawn plea was made with understanding and intention. For practical purposes the admission of the prior plea of guilty in evidence must have the latter effect and even places the burden of proof on the accused of explaning the confession. The favor accorded the accused should not be transformed into a trap.

It is said that there is no difference in principle between a plea of guilty interposed in a preliminary hearing and withdrawn as of right before trial and a plea withdrawn by permission. It seems to me that there is wide difference both in principle and in practical effect between the two cases. When an accused chooses to plead guilty knowing he has a right to withdraw the plea, his acts and statements may be used to support any inference that may logically be drawn from them. Since the subsequent withdrawal of the plea is a matter of right and not of favor, no argument can be made that the plea was not knowingly and intentionally interposed and no ground exists for declaring that the State makes the evidence of such plea incompetent. Analogy is also drawn between a pleading in a civil action superseded by an amended pleading. The analogy is not complete even where the amendment is made by permission. If that permission be granted as a favor, the favor should not be extended by implication to the detriment of the adversary. If the pleading though withdrawn has probative force because it contains an admission of fact, then even after its conclusive force has been destroyed other parties should be permitted to insist upon the logical effect of the admission. Where the State is the adversary, the situation is different; the court gives permission to substitute a plea and not merely to amend a pleading. The permission granted necessitates a trial and at the trial the presumption of innocence should not in effect be destroyed by the very plea that has been withdrawn. Difference is suggested by the circumstance that in one case a pleading is "amended;" in the other case a plea is withdrawn and another "substituted."

For these reasons it seems to me that the judgments of the courts below should be reversed and a new trial ordered.

HISCOCK, Ch. J., CARDOZO, POUND and ANDREWS, JJ., concur with CRANE, J.; LEHMAN, J., reads dissenting opinion, in which McLAUGHLIN, J., concurs.

Judgment affirmed.