Mastronada v. State

Chalmers, J., delivered the opinion of the court. Appellant was indicted, tried, and convicted of the offence of unlawful retailing, at a term of the Circuit Court of Warren County, begun and held on the 26th of June, 1882. By the ninth section of the act creating a separate court district in this State, composed of the county of Warren (Acts 1876, p. 241), the judge of that court was authorized to calla special term thereof for the transaction of criminal business in the months of July, August, and September; and this, it is insisted, excludes the power of convening one at any other time, and renders everything done at the special term here in question coram non judaicé and void. This construction of the statute is too narrow. By the general law of the State (Code 1871, sect. 878), in force at the time of the passage of the special act, the judges of the State were authorized to convene special terms of their courts whenever they deemed it necessary, by giving thirty days’ notice. By the ninth section of the special act under consideration, the judge of the Warren district was authorized to call such terms, during the months specified, by giving ten days’ notice. This must be construed in connection with the general law, not as depriving the judge of that district of the power enjoyed by all the other judges of the State, but rather as arming him with the added power of calling special terms during these months upon shorter notice, to wit, ten days’ notice. If this be not the true construction, it would follow that if a regular term for the transaction of criminal business should at any time fail, from any cause, there would be no power in the judge to meet the emergency, by forthwith calling a special term at such time as might be most convenient for the public interest, but he must necessarily [92] defer such action until the months of July, August or September, to the manifest injury of every public and private interest. A construction which would impose such expense upon the county, and such suffering upon persons who might be improperly confined in jail, should not be adopted, unless imperatively demanded by negative terms denying the right to convene the court at an3' other time than the one specified. No such words are found in the act. Whether any notice was, in fact, given in the present case is wholly immaterial, as was decided as far back as the case of Friar v. The State, 3 How. 422 ; and the principle has now been embodied in our statutory law. Sect. 2263, Code 1880. There was no error in refusing to permit appellant to withdraw his plea of guilty, Avith a view of entering a plea of not guilty. Such an order was certainly within the discretion of the court, but no injustice was done in refusing to exercise it in the interests of appellant. The affidavit filed in support of his motion did not aver that he was innocent of the offence with Avhich he Avas charged, but disclosed the fact that he was an old offender, who had, upon a previous occasion, pleaded guilty and escaped Avith the mildest penalty allowed by law. It set forth that he had been induced, from this fact, to believe that he would meet Avith equal leniency on this occasion, and had been, by this expectation, induced to enter his plea of guilty; but that he Avas iioav alarmed by a rumor that he Avas to be more severely dealt Avith, and therefore AAnshed to withdraw his plea and take his chances before a jury. Certainly, there Avas nothing in these statements to commend his application to the favorable consideration of the court. The action of the court probably and properly taught him that the infliction of the lowest penalty for a first offence, instead of conferring a vested right to the same measure of punishment for a second, rather suggests the propriety of so increasing the penalt}' t.hat it may effectually deter from a recurrence of a third. Judgment affirmed.