People v. Dabner

J.—The defendant, and one John Siemsen, were jointly charged with the murder of one M. Munekata. Upon arraignment, Dabner pleaded guilty. Thereupon the court heard evidence to enable it to ascertain and determine the degree of the crime and upon the evidence taken declared it to be murder of the first degree without mitigating circumstances, and punishable with death. When subsequently brought before the court for judgment and sentence upon the said plea, the defendant asked leave to-withdraw his plea of guilty and enter a plea of not guilty to the charge. Evidence and affidavits in support of, and in opposition to, this application, were introduced. The-court refused to allow the withdrawal of the plea of guilty and pronounced judgment and sentence of death. The appeal purports to be taken from the judgment and also from the order refusing leave to withdraw the plea. The latter-order is not appealable, but inasmuch as it can be reviewed on appeal from the judgment, the point is immaterial. A bill of exceptions, setting forth the evidence taken and proceedings had upon the inquiry as to the degree of the crime and upon the motion for leave to withdraw the plea,, was duly settled and appears in the record on appeal.

The evidence shows that Siemsen and Dabner, about noon-on November 3, 1906, entered a bank in San Francisco,. Imown as the Japanese bank, which was then in charge of the deceased Munekata, who was its manager, and an assistant named Sasaki, and asked to see the manager on-business. They were admitted to the manager’s private-office, which was in the rear of the premises, and Siemsen immediately struck Munekata on the head with a piece of gas-pipe which Dabner had procured the night before.. Munekata was rendered unconscious by the blow and died therefrom shortly afterwards. Dabner, as soon as the blow was struck and Munekata fell back unconscious, called toSasaki, the assistant, to come to the manager’s office. Became and was also beaten over the head by Siemsen and rendered unconscious. Siemsen then took from the till some two or three thousand dollars and the two defendants.

In support of the application to withdraw the plea of guilty, substitute a plea of not guilty, and go to trial before a jury, it was shown that the defendant was only eighteen years old, and that, until February, 1906, he had lived in or near the city of Petaluma, that he had there borne a good reputation for honesty, integrity, and good behavior and that he was not a strong-minded person, but was easily influenced by others. It was also claimed that he was insane. The grounds of his motion were that his plea of guilty was made through inadvertence, without due deliberation, in, ignorance of the law and the consequences of such a plea, in obedience to the advice and instruction of his father, and in the belief that if he made that plea, a jury would be called to fix his punishment and that he would be sentenced only to imprisonment for life. Evidence was given tending in some degree to support some of these grounds. On the other hand, the record shows that when he was arraigned, an attorney was appointed by the court to represent him, that two days were given him to consider his plea, that at the expiration of the two days other counsel were appointed to act as his attorneys and the case was continued for two more days; that a de

It thus appears that the defendant was given five days for deliberation as to his plea, that during this time he had

There was no contention to the effect that there was any serious doubt as to the defendant’s guilt, or that evidence could be produced which would tend to prove that the offense was anything less than murder of the first degree, or even to mitigate its atrocity and lay the foundation for a verdict of imprisonment for life, except the claim that the defendant was insane and that prior to his departure from Petaluma, ten months before the time of sentence, he had borne a good reputation for honesty, integrity, and good behavior. The evidence of his insanity was very slight, but nevertheless the court appointed three physicians to examine him in that respect and they unanimously pronounced him sane. His previous good character might have some bearing on the

Section 1018 of the Penal Code provides that the court may at any time before judgment permit the withdrawal of a plea of guilty and a substitution of a plea of not guilty. Jt is a matter within the sound discretion of the court, and its action must be upheld unless an abuse of discretion is shown. The following remarks of the court in People v. Miller, 114 Cal. 16 , [ 45 Pac. 987 ], are particularly applicable here: “The mere fact that a defendant, knowing his rights and the consequences of his act, hoped or believed, or was led by his counsel to hope or believe, that he would receive a shorter sentence or a milder punishment by pleading guilty than that • which would fall to his lot after trial and conviction by jury, presents no ground for the exercise of this liberal discretion. (People v. Lennox, 67 Cal. 113 , [ 7 Pac. 260 ].) To hold that it did would be equivalent to saying that a defendant might speculate upon the supposed clemency of a judge, with the right to retract if, at any time before sentence, he began to think that his expectation would not be realized. . . . Only after it is made manifest that defendant is to suffer the extreme penalty, and that no further delay will be permitted, do counsel produce the affidavit, itself made upon the day of the hearing, but not offered until that moment, and ask to be allowed to retrace all these steps thus advisedly taken. What conclusion can be reached except thé one that because the court was about to pronounce sentence of death, defendant and his counsel, knowing that he could not fare worse at the hands of a jury, and might fare better, sought an opportunity to essay the other chance. ’ ’

If we could perceive anything in the evidence which would have called for a lesser punishment than that the trial court was about to impose, some reason might appear why defendant should have been permitted to withdraw his plea and put his fate before a jury. No showing of this kind is made.

The defendant’s acts indicate that he is not so dangerous or vicious as his co-defendant Siemsen. His voluntary confession seems to have been full and frank. These facts might have aroused in the mind of the court some degree of sympathy for him, and perhaps, if a jury had considered the case, such sympathy might have been sufficiently potent to have saved him from the death penalty. But the comparison with his partner in crime does not establish the fact that his own acts were not sufficiently atrocious to deserve the severest penalty, but only to show that there were degrees of viciousness to which his disposition and capacity did not carry him. His voluntary confession does not lessen or soften the character of his crime. But, whatever its effect may be, it was addressed to the discretion of the court below, and it is not of sufficient weight to control our action to such an extent as to justify us in declaring that that discretion was abused. The responsibility in such matters rests upon the superior court. This court has no function to perform regarding it, except to see that the discretion of that court is not unreasonably exercised. As a matter of law the action of the superior court is justified by the facts. If an appeal is to be made to sympathy and sentiment it can only be done on an application for clemency and mercy addressed to the executive department of the state.

The judgment and order are affirmed.

Angellotti, J., Sloss, J., Lorigan, J., Henshaw, J., and Beatty, C. J., concurred.