Griffith v. State

Downey, J.

— The appellant was indicted, in separate counts in the same indictment, for embezzlement and grand larceny. In the count for embezzlement he was charged with embezzling one hundred dollars, the property of Richard T. Talbott, John P. Patterson, Joseph A. Moore, and William H. Morrison, on the 15th day of August, 1870. In the count for larceny he was charged with stealing one hundred dollars, the property of Richard T. Talbott, John P. Patterson, and William H. Morrison, on the 15th day of August, 1870. The defendant moved the court to require the State to elect upon which count of the indictment she would put him on trial, which motion the court overruled, and to which ruling the defendant excepted.

On being arraigned, the defendant pleaded that he was guilty, as charged in the indictment, and the court pronounced judgment against him of one dollar fine, and confinement in the state prison for two years. On the next day after the sentence had been thus pronounced,, and before the minutes of the preceding day had been read and signed, the defendant, by counsel, in open court, asked Leave to withdraw said plea, which was not allowed by the court, and he again excepted. It was not shown, or even stated to the *407 court, so far as anything appears, that the plea of guilty had been put in by the defendant through any mistake, surprise, or misapprehension of his rights or in relation to the facts of the case.

Three errors are assigned: first, the refusal of the court to compel the State to elect on which count she. would try the defendant; second, the refusal to allow him to withdraw the plea of guilty; and third, the. pronouncing judgment without a finding that the defendant was guilty, and specifying for which of the crimes he was sentenced.

It is urged by counsel for the appellant, that as embezzlement and larceny are distinct felonies, a count for each cannot be united in the same indictment. It is conceded that they are distinct crimes; but we cannot agree that the consequence contended for follows. We think it proper, where the felonies belong to the same class, and are so nearly ‘alike as embezzlement and larceny, to allow the prosecutor to put into the indictment a count for each. This is but the exercise of a prudent foresight in anticipation of a possible variance in the evidence from the allegations of the indictment. Counts for larceny and receiving stolen goods, which are distinct felonies, are constantly united. So are counts for forgery and uttering the forged instrument, etc. Counts for wholly dissimilar felonies cannot be united, for the reason, we presume, that in this case the object would, at once, appear to be, to convict the defendant of separate and distinct crimes, under the same indictment, and which might tend to confuse him, and place him at a disadvantage in making his defence. But we deem further discussion of this question unnecessary, as it has been settled, we think, by former decisions of this court, against the appellant. McGregor v. The State, 16 Ind. 9; Engleman v. The State, 2 Ind. 91; The State v. Smith, 8 Blackf. 489; 1 Bishop Crim. Proced. secs. 180, 181.

Upon the question as to the correctness of the action of the court in refusing to allow the defendant to withdraw the *408 plea of guilty, our opinion is that there was no error committed. The court is backward in receiving and recording the plea of guilty from a prisoner, and will sometimes advise the prisoner to plead not guilty and put himself upon his trial. 2 Hale P. C. 225. But after the prisoner has pleaded guilty to the indictment, and his plea has been received, and the sentence of the court pronounced, we know of no authority for holding that, upon the naked request of his counsel, on a subsequent day of the term, the prisoner may withdraw his plea of guilty. The fact that the record is not read and signed by the judge until the next morning, does not make any change in our mind on this subject. The theory is that the acts of the court are reduced to writing by the clerk as the cause progresses. The object to be accomplished in reading the minutes on the next day is to ascertain that they have been correctly entered by the clerk. The parties cannot say that they are not bound by what has been done by the court, merely because the minutes have not yet been read and signed. The statute simply declares that “no process shall issue on any judgment or decree of the court until it shall have been so read and signed.” 2 G. & H. 9, sec. 22. Had the defendant shown that by inadvertbnce or mistake he had pleaded guilty, the court would, doubtless, have retraced its steps, and allowed him to withdraw his former plea and plead otherwise to the indictment. 2 Bishop Crim. Proced. sec. 465. We. do not say that the court might not have granted the request without any showing, or that it would have been error to have done so.

It is claimed that the judgment should be reversed, because the record does not show that the court found the defendant guilty. Upon a plea of guilty, or actual confession in open court, the court has nothing to do but to fix the amount of punishment and render judgment or sentence accordingly. There is nothing for the court to find. The prisoner, by his confession, has made a finding unnecessary. The court may take- the prisoner at his word, and proceed accordingly. Mr. Blackstone, in his Commentaries, says: *409 “ The other incident to arraignments, exclusive of the plea, is the prisoner’s actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is' usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment.” 4 Bl. Com. 329. In the case under consideration, as we have seen, the defendant confessed that he was guilty, as charged in the indictment; that is, that he was guilty of the embezzlement and larceny charged in the indictment, not of one or the other, but of both. There remained no uncertainty as to what it was of which he was guilty.

The punishment for embezzlement, as prescribed by statute, is a fine of not less than one, nor more than five hundred dollars, and imprisonment at hard labor in the state prison, not less than two nor more than twenty years; that for grand larceny is a fine of not exceeding double the value of the goods stolen, imprisonment in the state prison not less than two nor more than fourteen years, and disfranchisement and incapacity to hold any office of trust or profit for any determinate period.

The sentence of the defendant in this case was that he pay a fine of one dollar and be imprisoned in the state prison for the term of two years. Nothing having been said about the disfranchisement of the defendant, and his being rendered incapable of holding any office of trust or profit for any period of time, which is an indispensable part of the punishment for grand larceny, it would seem to be reasonably certain that the criminal court intended to sentence the defendant under the count for embezzlement, and not under that for larceny.

The court could not have intended to render one common judgment on both counts, punishing the defendant for both crimes, for the reason that the punishment" imposed is no more than the minimum punishment for the crime of embezzlement. It is probable that the court might, upon the *410 confession of the whole indictment, have rendered a separate judgment upon each count, against the defendant.

But in this, as in other cases, when two sentences of imprisonment in the state prison are pronounced against the same person, his time as to both would be going on at the same time, and he would be entitled to his discharge at the end of the longest term. Miller v. Allen, 11 Ind. 389. It will hardly be contended, we presume, that the prisoner can successfully object that the punishment imposed was less than might legally have been inflicted. It is probable that the learned judge of the criminal court regarded the counts of the indictment as based on the same transaction, and that, losing sight of the count for larceny, he sentenced the defendant alone on the count for embezzlement. The judgment was fully justified by the indictment and the confession of the defendant, and we cannot disturb it. a Bishop Crim. Proced. secs. 837, 838, et. seq.

The judgment is affirmed, with costs.