Amador ledger., 1906-07-20

In Bank. People of the State Of
California, plaintiff and respond
ent, VS.. +. N. Staples, defendant and
appellant. Grim. No. 1910.
The defendant was indicted for the
murder OF his wife in Amador county,
convicted, sentenced to death, and
appeals from the judgment and an
order denying his motion for new
trial. Many grounds are urged for a
reversal, but it is mainly insisted
that the verdict of the jury was not
warranted from the evidence
Before we approach the consldera-
tion of this claim, however, it is
necessary to dispose OF other points
raised by the defendant prior to the
actual trial, which were ruled on
adversely to him, and upon which he
predicates error.
These points are that the court
erred in refusing to grant the motion
of defendant to be permitted to with
draw his plea of not guilty, so that he
might move to set aside the indict-
ment filed against him, and also
erred in denying his motion for a
change of venue.
As to the motion to permit a with
drawal of his plea. 1t appears that
upon the arraignment of defendant,
March 9, 1905. he was represented by
an attorney, and the time for receiv-
ing his plea continued until March
II, 1905, at which time he entered a
plea of ''not guilty." and the time
for trial, by consent of said attorney,
was fixed for April 10, 1905. Neither
OF hot
any motion of that character inter.
posed. Subsequent to the arraign-
ment and plea, defendant having pro-
cured additional counsel, they gave
notice that on March u, 1905, they
would move the court to grant a
continuance of the time for trial for
month, and to permit defendant to
Withdraw his plea of mot guilty." !"
and make such motion relative to the
indictment as he might be advised,
said motion being based on, the
grounds that defendant could not
prepare for trial on the day set, and
that the plea of mot guilty. was
inadvertently entered. The motion
was based upon attidavlts which we're
addressed mainly to a showing for a
continuance, although as to the
motion for leave to withdraw the plea
it appeared theretrom that the attor-
ney representing defendant on the
arraignment and at the time he plead,
was inexperienced and unacqnainted
with the practice IN criminal pro-
cedure, and for that reason it was
claimed tailed to make motion to
set aside the indictment before the
defendant plead. Upon the hearing
the court granted the motion for a
continuance, but denied the motion
to allow a withdrawal of the plea.
As there was no proper showing
addressed to the motion to withdraw
the plea of mot guilty" and be per
mitted to interpose motion to set
aside the MISUNDERSTANDING to
show that there existed any ground
upon which such motion might be
based if an opportunity to present it
was granted-the order denying the
motion to set aside the plea was
correctly made. Undoubtedly a de-
fendant has right, Notwithstanding
plea of not guilty is inteIposed, to
move at any time prior to the trial
tor leave to withdraw it for the pur-
pose of demurIipg or moving to set
Villarino, &C CAL, 23O) but he has no
absolute right upon motion to have
the order made, and whether it shall
be granted or not is a matter resting
in the discretion of the court, to be
exercised upon proper and sufficient
showing, and it cannot be said that
such discretion is abused where a
bare motion to be permitted to with
draw the plea and attack the indict-
ment is presented without any
suggestion or showing that, if grant
ed, he defendant has any grounds
whatever upon which to base the
motion which he claims he desires to
interpose. 1t would be an idle act
upon the part of the court to further
delay the trial of cause which was
advanced so far as to have the plea of
the defendant entered, by granting a
motion to Withdraw that plea and
permit an attack upon the Indictment,
without any showing at all that valid,
reasonable or even any disputable
grounds existed upon which an attack
could or would be based. While in
experience OF counsel may supply a
reason why the motion to set aside
was not made before the plea of de-
fendant was entered, it in no wise
tends to show that there then existed
any grounds upon which a motion
could have been based had he been
more experienced in criminal pro-
cedure. The showing of inexperlence
should have been supplemented by
some showing, by affidavit of the
existence of facts or grounds upon
which a motion to set aside the
indictment could have been based
had his counsel been advised of the
legal right of defendant to do so, or
at least by proffer for filing of a
motion to set aside the indictment
upon specific grounds should the
motion to withdraw the plea be
granted. AS no affidavit was pre-
sented and no proffer made, there was
hence nothing to Indicate that any
grounds existed upon which to pre-
dIcate a motion should the plea be
withdrawn, and under these circum-
stances there was no abuse of dis
cretion on the part of the court IN
denying the motion for leave to do so.
The motion of March 27, 1865, hay-
ing been properly denied, the defend
ant, through the same counsel who
had presented the original motion,
but without any leave or permission
of the court to do so, on April 27,
/ Hr,