People v. Kleist

Mr. Justice Thompson delivered the opinion of the court: Plaintiffs in error, Tom Kleist and Emil Knapp, by indictment returned March 12, 1923, to the criminal court of Cook county, were charged with larceny. April 6 the cáse was set for trial April 8. On the latter date the cause was continued, on motion of the defendants, until April 16. When the case was again called for trial there was a further continuance to April 28. On the latter date the defendants secured a third continuance to May 2. These three continuances were granted on the ground that counsel for defendants was -engaged in the trial of other cases. May 2 there was a fourth continuance to May 8. The case stood on the call until May 11, when it was called for trial. By agreement of counsel the case was continued until May 15, the court informing Simon Herr, counsel for the defense, that there would be no • further continuances granted. When the case was called for trial Louis Fisher, employed by the firm of Raber, Kostner, Herr & Arvey, appeared in court and stated that Herr had become engaged in the trial of a criminal case in the municipal court and asked that the case at bar be continued until the trial in the municipal court was concluded. This motion was denied and the court directed Fisher to proceed with the trial. Fisher stated that he was not prepared to make a proper defense, that he had not conferred with the defendants, and that Herr was the only attorney who was familiar with the case. The court directed Fisher to prepare to defend the cause and gave him an hour and a half for preparation. At 10:30 A. M. the court directed the trial to proceed and counsel proceeded to the selection of a jury. After eight jurors had been accepted by both sides Fisher advised the assistant State’s attorney that he would advisé defendants to plead guilty. Theretofore the prosecutor had agreed to accept a plea of guilty to petit larceny. The defendants were brought to the bar of the court and Fisher announced that they desired to withdraw their plea of not guilty and to enter a plea of guilty to the indictment. Fisher told the court that he had explained to the defendants the consequences of a plea of guilty, and when they were asked by the court if they understood the consequences of their plea and if they persisted in it, Fisher, in their presence, told the court that they did. Thereafter Jacob Arvey, of the firm of Raber, Kostner, Herr & Arvey, appeared in court and asked the court to continue the matter until Herr could give it attention. The court replied that he would set aside the plea of guilty and that the cause could proceed to trial with Arvey and Fisher defending. After further conference Arvey declined this offer and asked the court to continue the matter for consideration of an application for release on probation. The court thereupon called to the witness stand three witnesses, employees of the company whose property had been stolen, and examined them. It appeared from their testimony that plaintiffs in error were employees of this company; that they had loaded copper wire belonging to the company into the wagon of a confederate; that this wire was to be sold and the money divided among the three involved in the theft. It appears, also, that plaintiffs in error testified, but their testimony is not incorporated in the bill of exceptions. When plaintiffs in error had concluded their testimony the court said to them, “Well, you men know, and can tell us if you wish, to whom you .sold this merchandise.” Arvey thereupon replied: “All through this case our Mr. Herr has been endeavoring to obtain from these men the names of the person or persons who purchased or were to purchase this material, but these defendants have absolutely no knowledge of the same. Their part in the transaction ended when they delivered the merchandise on the wagon to the driver of the same, and they do not know now, nor have they ever known, who these men were.” After further conference the court refused to continue the case for a hearing on an application for release on probation and sentenced plaintiffs in error to the penitentiary. May 22 a motion was made to vacate the sentence. This motion was supported by the affidavits of Herr, Kleist and Knapp. Nowhere in these affidavits is it stated that plaintiffs in error are not guilty of the charge to which they have pleaded guilty, or that they have a substantial defense to the charge, or that there are any facts or circumstances which would in any way reduce the crime from a felony to a misdemeanor. The record in this case shows that the defendants were fully advised of the effect of their plea of guilty and that they persisted in said plea after due admonition by the court. Where the accused, with a full understanding of the nature of the charge against him, pleads guilty to an indictment, whether the plea will be permitted to be withdrawn is discretionary with the court; (People v. Stamatides, 297 Ill. 582; People v. Bonheim, 307 id. 316;) but where it appears that a plea of guilty was entered through a misapprehension of the facts or the law, or where it appears there is doubt of his guilt, or that he has any defense at all worthy of consideration by a jury, or that the ends of justice will be best served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and the substitution of a plea of not guilty. (People v. Byzon, 267 Ill. 498; People v. Walker, 250 id. 427; Krolage v. People, 224 id. 456.) The law seeks no unfair advantage over an accused but is watchful to see that the proceedings in which his life or liberty is at stake shall be fairly and impartially conducted. It holds in contemplation his natural distress and is considerate in viewing the motive which may influence him to take one or another course. The mere fact, however, that an accused, knowing his rights and the consequences of his act, hoped or believed that he would receive a shorter sentence or a milder punishment, or some other favor, by entering a plea of guilty than that which would fall to his lot after trial and conviction by a jury, presents no ground for permitting the withdrawal of the plea of guilty. Whether a continuance will be granted because counsel is engaged in another trial rests largely in the sound judicial discretion, of the trial court, and the exercise of this discretion will be disturbed on review only where it is shown that it has been abused. (People v. Singer, 288 Ill. 113.) In this case there had been repeated continuances because of counsel’s engagement in other trials. When the last continuance was granted it was with the distinct understanding that the case would be called for trial May 15. Notwithstanding this agreement counsel permitted himself to become engaged in the trial of a cause in another court. While counsel’s obligations to his clients ought to be respected by trial courts, favors cannot be granted to the point where the orderly conduct of the court’s business will be disturbed. The case at bar was a simple one, and it appears from the record that plaintiffs in error would have been ably represented by Messrs. Arvey and Fisher. As we have said, plaintiffs in error do not state in their affidavits that they are not guilty nor do they allege that they have a meritorious defense which they can present on a trial. With the hope that they might receive a light jail sentence or that they might be released on probation they entered their plea of guilty. They have been disappointed in their plea for leniency, but that does not justify setting aside the judgment that is entered against them. After a full review of the record we are satisfied that the court did not abuse his discretion in denying the motion. The judgment of the criminal court is affirmed. Judgment affirmed.