People v. Bauman

WARD, J.

An appeal by defendant from a judgment of conviction of the crime of feilony, to wit, murder in the second degree, following his plea of guilty to the offense as charged in an information. Defendant subsequently moved to withdraw his plea of guilty, and the question is, whether the court abused its discretion in denying such motion.

Penal Code, section 1018, provides: “A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment or information against a corporation, in which case it may be put in by counsel. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted. ’ ’

Appellant and Joseph Patrick were charged with the murder of William Stewart. More than a month after the arraignment, appellant entered a plea of guilty. For the purpose of determining the degree of the offense, an inspector of the police department was sworn as a witness and, through him, statements made by Patrick and appellant were introduced in evidence. No objection was made thereto.

The statements in brief showed that on the night of the murder, the two defendants, soldiers attached to the Presidio at San Francisco, were with Stewart at a resort referred to in the statements as a saloon, where Stewart changed a ten or a twenty dollar bill. Later, during the same evening, Stewart accompanied Patrick and appellant into a nearby alley, where, according to the statement of Patrick, he struck the civilian Stewart on the mouth or chin, rendering him unconscious. From his person, Patrick took a bill-fold and he and the appellant fled in different directions. Nothing of value was found in the bill-fold and it, with its contents, was thrown away. Subsequently Patrick and appellant met and returned to the alley, where Patrick again searched Stewart, but could find no money. As they left the alley they were observed by a civilian who reported the matter to the police. Appellant, taken to the morgue, identified Stewart as the man who had been drinking with Patrick and himself earlier in the evening. Later, referring to the statement made by

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Patrick, appellant said that the man in the morgue was the person described in Patrick’s statement. Appellant denied that he had searched decedent, but admitted that “two searches of the civilian’s body” had been made, and, on hearing the Patrick statement read, he adopted the same, saying: “Well, see I was there, but there is nothing to be added or subtracted. ’ ’