WRITS OF ERROR to the Criminal Court of Cook County; the Hon.
WILBERT F. CROWLEY, Judge, presiding.
Rehearing denied January 18, 1954.
Plaintiff in Error, Percy King, twenty-three years of age, and two co-defendants, Arthur Murphy and Theodis Hester, were convicted on pleas of guilty in the criminal court of Cook County, on two indictments, one charging murder and one charging armed robbery, both charges growing out of the same occurrence. At the same time King and Hester pleaded guilty and were convicted and sentenced on a third indictment for a separate and distinct armed robbery charge. Defendant King was sentenced to death on the murder charge and to confinement in the penitentiary on each of the armed robbery charges for a term not less than 199 years nor more than life, such sentences to run concurrently. King alone is here by writs of error to review all three convictions, which have been consolidated in this court.
In the early morning hours of Sunday, October 13, 1951, defendant King, armed with a 410-gauge shotgun, accompanied by Murphy, entered the lobby of the Bellereve Hotel located on Chicago's south side. The night clerk, Joseph Birney, was behind the desk. King ordered Birney to put up his hands, vaulted over the counter and demanded money. He took some from the money drawer and commanded Birney to open the safe in the office behind the counter. When told that the safe could be opened only by Brinks, Inc., he struck Birney several times and ordered him to go into a room opening off the lobby, the room of the deceased Helen Benson and her husband Eugene. Mrs. Benson was alone in the room when defendant, Birney and Murphy entered. King demanded money from Mrs. Benson, her husband entered the room, and she ran from the room screaming. King and Murphy followed and when she reached the walk in front of the building the shotgun was discharged, Mrs. Benson received the charge in the left side of her face and died shortly thereafter. King and Murphy ran to their car where Hester had waited for them and escaped to their homes. All three were subsequently apprehended and signed written statements admitting all the facts. The defendant, in his written statement to the police and in his testimony at the trial stated that he tripped over an obstruction as he was running from the hotel and the gun was accidentally discharged.
All three were indicted for the murder and for armed robbery. Upon arraignment on the murder indictment counsel for King and Murphy advised the court that their clients were remorseful, wanted to tell the truth and wanted to plead guilty. Defendant Hester was granted a separate trial on his plea of not guilty.
On July 21, 1952, the court, after advising them of their legal rights and admonishing them of the consequences, accepted the pleas of guilty to the murder indictment by King and Murphy. Immediately thereafter the court accepted defendant King's plea of guilty to both the armed robbery indictments, one of which was an occurrence separate and distinct from the occurrence which resulted in the murder indictment. Murphy also pleaded guilty to the armed robbery associated with the murder. He was not a defendant in the separate robbery indictment. The court thereupon continued the hearing in aggravation and mitigation and the sentencing of King and Murphy, and called a jury for the trial of Hester on the murder indictment.
On the following day Hester withdrew his plea of not guilty, entered a plea of guilty to the murder indictment, which was accepted by the court, a juror was withdrawn and the jury discharged. Hester then pleaded guilty to both armed robbery indictments, and the court announced that the cause would be continued to 2:00 P.M. of that day, at which time he would hear evidence in aggravation and mitigation in the murder case. Evidence was heard, at the conclusion of which the court sentenced defendant King to death and Murphy and Hester to 199 years imprisonment. Counsel for defendant King immediately stated to the court that he wanted to make a motion to vacate the judgment and for a new trial. The trial judge then announced that he would enter the formal orders on the following day, hear the motions and sentence the defendants on the armed robbery pleas.
At noon on the following day, Wednesday, July 23, 1952, counsel for King moved for a continuance to the following Tuesday, July 29. This motion was denied and counsel was required to proceed with his argument on the motion. Defendants Murphy and Hester having filed similar motions, the court heard arguments of counsel for all the defendants and also heard evidence on said motions. The motions of Murphy and Hester were granted, Murphy's sentence of 199 years was reduced to life imprisonment, and Hester's sentence was reduced to 60 years. King's motion was denied and an order was entered imposing the death sentence.
Defendant's serious objections raised here are that the trial court erred in denying his motion because his plea was entered in reliance upon the State's Attorney's promise of leniency; that the State's Attorney misled his counsel to believe a plea of guilty would save his client's life; that his counsel mistakenly advised him to plead guilty and the State's Attorney would waive the death penalty; the court erred in hearing evidence of knife wounds on the body of the deceased when there was no evidence that defendant had inflicted them and in hearing evidence as to other unrelated crimes by defendant; that the court erred in accepting pleas of guilty from defendant as to other crimes before passing sentence in the murder case; that defendant's sentence was disproportionate to the other defendants' and was unfair; and that the whole proceeding was disorderly, misguided by defense counsel and lacked the characteristics of a fair and orderly trial as guaranteed by the constitution.
It is well established that an accused who enters a plea of guilty to a criminal offense, hopeful of leniency, should not be permitted to withdraw that plea merely because he is dissatisfied with the sentence imposed. (People v. Morreale, 412 Ill. 528; People v. Hancasky, 410 Ill. 148.) After a plea of guilty a prisoner stands before the court as a convicted criminal, and the presumptions of innocence which the law indulges on a not-guilty plea no longer exist. He may be hoping for leniency but he is entitled only to justice. (People v. Riley, 376 Ill. 364.) But, where one is sentenced on a plea of guilty the withdrawal of such plea after sentence is a matter discretionary with the trial court, a discretion which should be exercised liberally, especially in capital cases, in favor of life and liberty. The law favors a trial on the merits and all doubt should be resolved in favor of such a trial. (People v. Schraeberg, 340 Ill. 620; C.J.S., vol. 22, p. 641.) We have held that a defendant should be permitted to withdraw his plea when the record shows it was entered through misapprehension of the facts or the law, where the defendant has any defense worthy of consideration by the jury, or in any case where it appears that the ends of justice will be best served by submitting the case to the jury. (People v. Throop, 359 Ill. 354.) The fact that defendant may be found guilty at the trial is not sufficient reason to deny him the opportunity to present such defense as he may have. (People v. Carzoli, 340 Ill. 587; People v. Kurant, 331 Ill. 470.) The statutes of this State provide that the crime of murder may be punishable by death, life sentence or a sentence to any number of years. If accused has any defense to the charge he should have the right to present that defense for consideration of the jury in fixing his punishment. (People v. Jameson, 387 Ill. 367.) Where the death sentence is imposed upon a plea of guilty, justice, which embodies all humane considerations, demands that the record be clear of any taint of misunderstanding, lack of knowledge, misleading information or advice, improper inducement or misleading conduct by the prosecuting attorney, anyone in authority over the prisoner, or anyone considered an officer of, or in any manner connected with, the court which imposes that sentence. If any doubt exists that the prisoner's plea is completely free from such influences justice demands that such doubt be removed. People v. Trobiani, 412 Ill. 235.
A serious doubt that defendant's plea was completely free from such influences exists in this case. Immediately upon pronouncement of the sentence by the trial judge defense counsel moved to vacate the judgment and sentence on the ground that he had been misled by the assistant State's Attorney into believing that the death penalty would not be imposed, and, relying on this belief, had advised his client to plead guilty to the crime of murder, an act which resulted in the forfeiture of his life. At the hearing on this motion defense counsel stated to the court that at least a week before the trial the assistant State's Attorney who prosecuted the case "solicited me . . . and promised me if I would plead these defendants guilty he would waive the chair and recommend leniency, and based upon that statement, that statement alone, Howard R. Williams, attorney for the defendants Arthur Murphy and Percy King, pleaded guilty." Defense then called the assistant State's Attorney to the stand. The substance of his testimony was a denial of any promise of leniency made to defense counsel, but the witness did admit that he did have a conversation with defense counsel about the defendants pleading guilty and admitted that he had advised defense counsel that in his opinion that was counsel's only chance to evade the death penalty. Williams, counsel for King and Murphy, upon direct examination by Huff, attorney for defendant Hester, then testified that he had talked with Huff, advised him that he was pleading King and Murphy guilty on the State's Attorney's promise of leniency and that he (Williams) advised both Huff and his client Hester to plead guilty, assuring them that they would get the same leniency from the State's Attorney. He further testified upon cross-examination by the State's Attorney that he told Huff that if Hester stood trial King and Murphy would take the stand and testify against him. These conversations between Williams and Huff and Williams and Hester are not denied.
Without determining whether Williams' belief was justified, his conduct, both before and at the trial, characterized by his eagerness to throw his clients' fate upon the mercy of the court and his attempt to induce Hester to plead guilty, unmistakably demonstrates the sincerity of his belief and his conviction that his clients would thereby avoid the death penalty. The admission of the assistant State's Attorney that he did talk with defense counsel in the corridor of the courthouse about the pleas and the penalty, the contradictory evidence as to what this conversation was, counsel's eagerness to plead his clients guilty, his entreaties to defendant Hester and his counsel, and, significantly, the failure of the State's Attorney to make any recommendation to the court, form a set of circumstances which this court cannot say is clearly free from doubt that plaintiff in error's plea was a result of his being misled by his counsel, who in turn was either misled by the assistant State's Attorney or by his own stupidity or incompetence.
At the hearing in aggravation and mitigation defendant King testified that as he ran from the building he tripped and the gun was accidentally discharged. The existence and location of the obstruction which defendant stated had tripped him was clearly brought out by the assistant State's Attorney's cross-examination. There is nothing in the record to contradict this version of the killing. While this explanation of the killing may not be a defense to the murder charge, it is an explanation of the killing which a jury might consider eliminated the heinous character of the killing and the abandonment of heart necessary to justify the imposition of the extreme penalty.
We believe that the circumstances place this case in that category of cases where justice may best be served by removing all doubt as to the propriety of the sentence and that the judgment and ...