People v. Mills

DORAN, J.

Defendant herein was charged by information with five counts of issuing checks without sufficient funds, felonies, and on December 8, 1936, entered a plea of guilty to count 1 of the information. Permission was granted to file an application for probation. Time for the hearing on the application for probation and the pronouncing of judgment and sentence was set for December 18, 1936; however, on that date, due to illness of counsel, the matter was con-

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tinned to February 5, 1937, at which time the application for probation was denied and defendant was sentenced to the penitentiary. A thirty-day stay of execution was granted. On March 11, 1937, defendant appeared in court and made two motions,—one to set aside the plea of guilty and to be permitted to enter a plea of not guilty, which motion was denied; thereupon defendant made a motion to modify the judgment, in connection with which motion the court was requested to “give this defendant a suspended county jail sentence". This motion was also denied.

Defendant appeals from the order denying the two motions on the ground that the court abused its discretion in denying the same.

The verified petition supporting the motion to modify the judgment, in the lower court, set forth four grounds as the basis of the motion: namely, “1. That the Court abused its discretion in determining that defendant was not entitled to probation; 2. That the Court abused its discretion in determining that the crime to which defendant plead guilty constituted a felony instead of - a misdemeanor; 3. That the report of the probation officer upon which the Court acted, was in many respects incomplete, misleading, and contrary to the facts; 4. That said probation officer concealed from the Court important facts which were material to the proper consideration of defendant’s cause; and that said Court relied and acted upon said report and the Court was deceived and misled thereby to the prejudice of the defendant. ’ ’ The same claims are reasserted on appeal, in addition to which it is further contended, in substance, that appellant is not guilty of the crime charged; that the transaction was civil in its nature and not criminal; that the court failed in its duty to make proper inquiry before pronouncing judgment; that the trial court should have dismissed the case on its own motion in the interests of justice, and that it ruled contrary to law with respect to other contentions then and there urged by defendant.