Year: 1866




! Swang, the plaintiff in error, presented by
the grand jury in the Circuit Court at Winchester
| in ten cases for gaming. The game was cards; and
Smock the only witness before the grand jury, was
participant in the crime. At the same term OF
the court at which the presentments made, the
| plaintiff in was placed under arrest and held


IN the custody of the sheriff. Pending the term mr.
der an arrangement with the district attorney eight
of the causes were dismissed on the prisoners as
suming and securing the COSTS and in the other two
| he pleaded guilty, and submitted himself to the
grace and mercy of the court. Whereupon the court
assessed fine upon him of fifteen dollars in the one
case and ten in the other, with the costs of both
submissions, which was regularly entered on record
| Two days thereafter, and during the same term
Swang appeared, and in proper person moved the
court to set aside his submission and the judgment
for the fine and costs The court overrued the mo.
ion, from whicn the plaintiff appealed in error to
this court.


| The first question presented in the record is
whether or not the plaintiff in error had the right
to waive his submission and plead not guilty. We
think he had In old case, reported in lst Ten
nessee, 49, the question is distinctly decided and
that part of the opinion of the court has not so far
as we have been able to see been overruled by any
subsequent decision. The right seems to be founded
in sound reasoning but it only be exercised in
such cases as effected with fraud, putting in fear
or gross misrepresentation. By the Constitution of
the State the accused in all cases, has right to "a
speedy public trial by impartial jury of the
ty or district in which the crime shall have been
committed" and this right cannot be defeated by
any deceit or device whatever The courts would
be slow to disregard the solemn admissions Of the
guilt of the accused made in open court by plea
otherwise, but when it appears they were made un-
der total misapprehension of the prisoners rights
through official misrepresentation, fear fraud it
is the duty Of the courts to allow the plea OF guilty
and the submission to be withdrawn, and to grant
to the prisoner a fair trial by an impartial jury.


In this case the application supported by the
prisoners own affidavit and the afidavits of seven
other persons including the joint statement of the
grand Jurors These statements disclose state
ments of facts which we apprehend is unprecedent-
ed in the judicial history of the State and if they
are to be believed and they corroborated in many
ESSENTIAL particulars by the affidavit of the District
Attorney they amount in the prosecuting attorney
to little less than common barratry and official op
preston. We do not deem it necessary to comment
Further upon them many of the facts stated are
wholly erroneous and inapplicable 10 this case but
Enough appears to satisfy the court that the plea of
pguilty and the submission were made under an un-
warrantabe exercise of the influence of the District
Attorney. The accused was stranger, and non
resident of the State in the custody of the sheriff.
and away from those who would be likely to become
bound for his appearance. Under such embarras-
sing circumstances, he was, as it appears, among
other things, highly improperly told by the Atter
ney General that if be did submit he would have
to go to JAIL and that he could Certainly prove his
guilt. The plea of guilty was entered as the ati-
davit shows, while the prisoner was protesting
against his guilt, but the best under the crcum-
stances he could do.


Under such state of facts we think the Circuit
Judge had not only the power, during the term, to
set aside the judgment, and allow the prisoner to
withdraw his plea and submission and plead over
but that it was error not to do so.


In ordinary cases, and when the Circuit Judge
felt he had the power set aside judgment after
submission we would not feel disposed to disturb his
action but in this it appears he doubted his au-
thority to allow the motion and set aside the judg
ment after plea of guilty. and for that reason this
feels warranted under the facts of this case to
reverse the judgment of the Circuit Judge, and to
award trial of the cause under proper pleadings,
before a jury. MlLLlGAN, Judge.


Attest j. G. FRAZER, Clerk