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evidence was introduced upon the defend-, petent, regardless of its logical force, in acant's cross-examination, the question pre- cordance with practical considerations. Our sented upon this appeal is not whether the determination of the question of the admisevidence is relevant or material, but wheth- sibility of the earlier plea regarded as a er it is competent, and I think we are agreed confession or admission must depend primathat the same considerations govern its com- rily, not upon the possible logical probative petency, regardless of the point in the pro- force of the evidence, but rather upon whethceedings at which it was introduced. It can er the favor extended to the accused of withnot tend to discredit or contradict the de- drawing his previous plea did not, by necfendant in his denial of guilt unless it was essary implication, include the favor that he competent as evidence to show a previous ad- was to be restored to the same position as mission or confession of guilt.

if the plea had never been offered. We may not upon this appeal question We must assume that the court did not whether the trial judge has properly exer- abuse its discretion in granting the favor but cised his discretion. He has permitted the held the scales' of justice even. If the court withdrawal of the plea' of guilty, and there was convinced beyond question or doubt of by effectively destroyed it as part of a judi- the guilt of the accused and of the fact that cial record upon which judgment might be the confession of guilt was made with intenentered. Concededly the withdrawn plea is tion and understanding, reason to permit the no longer conclusive, but it is said that the withdrawal of the plea fails. When the perfavor, which the court has accorded the de- mission is granted, the court necessarily de. fendant under the power expressly conferred cides that there shall be an actual trial of upon it, does not destroy such logical proba- the guilt of the accused, because there is tive force as might reasonably be given to doubt of whether the plea was made with previous admission or confession, and the understanding and intent to confess a crime withdrawn plea is therefore admissible in which the accused had actually committed. evidence, to be given such force and effect The court acts to protect an accused who as the jury may determine it has under all has perhaps made an untrue confession. the circumstances. I may concede that a May the confession which the court has de confession, even though withdrawn, may un- cided it should not act upon thereafter be der certain circumstances have logical proba- used as evidence, even though not conclusive, tive force. The plea of guilty solemnly de- of the defendant's guilt? If made without livered in open courtrecorded in the understanding and intention to confess acpresence of a conscientious and painstaking tual guilt, it does not tend to establish guilt. judge, is a confession of guilt, and “confes- If made with such understanding and intension was always regarded as the highest tion, its logical probative force is so great kind of conviction" (People ex rel. Hubert that it would seem almost playing with v. Kaiser, 150 App. Div. 541, 135 N. Y. S. words to say that it is not controlling. 274; affirmed 206 N. Y. 46, 99 N. E. 195); There is no third hypothesis; no ground for but the same court which in this case has giving the confession lesser force. The de taken the plea has, in the exercise of its dis- fendant testified in this case that the plea cretion, destroyed its force as a plea. I may was based upon his mistake, and he never concede that the fiat of the state, uttered intended to plead guilty. His testimony was by court or Legislature, cannot give logical not denied, and probably could not have been probative force to evidence which lacks such denied even if untrue. To some extent surforce or destroy the probative force which rounding circumstances corroborated him. evidence may logically have. In the domain The plea was withdrawn promptly when & of pure reason, the sovereignty of the state probation officer told him that he had pleadis not recognized. The admissibility of evi- ed guilty. Though the judge who took the dence is not, however, determined solely by plea held the explanation constituted suffiits possible logical results. The courts have

cient ground for permission to withdraw the evolved, and the Legislatures have created, plea, the jury was permitted to speculate as rules of evidence by which classes of evi- to whether the plea was made with underdence are excluded, though in particular in- standing and intention.

In spite of the stances the evidence might have logical pro- charge of the trial judge that the accused bative force, when it appears that in general was entitled to the presumption of innocence. such evidence is too unreliable to form any the admission of the previous plea, which basis for a conclusion, or tends unduly to placed upon the defendant the burden of confuse or prejudice the jury, or when its explanation, effectively destroys the preproduction would contravene some consider- sumption. The favor of permission to withation, real or assumed, of public policy. In draw a plea, which it is claimed is not a its own tribunals, the state may decide what true confession, is of little value if the withkind of evidence may be excluded as incom- drawn plea may be used to nullify the sub

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(148 N.E.) stituted plea. When the state allows a man | makes the evidence of such plea incompea trial, the trial should be fair; when the tent. Analogy is also drawn between a court decides that in the interests of jus pleading in a civil action superseded by an tice a plea may be withdrawn because there amended pleading. The analogy is not comwould be possible danger of injustice in act- plete, even where the amendment is made by ing upon it, the accused should be placed in permission. If that permission be granted the same position as if the plea had never as a favor, the favor should not be extend. been made. The trial should be held for ed by implication to the detriment of the the sole purpose of determining the guilt of adversary. If the pleading though withthe accused, and not for the purpose of de- drawn has probative force because it contermining as a preliminary matter wheth- tains an admission of fact, then, even after er the withdrawn plea was made with un- its conclusive force has been destroyed, othderstanding and intention. For practical er parties should be permitted to insist upon purposes the admission of the prior plea of the logical effect of the admission. Where guilty in evidence must have the latter ef- the state is the adversary, the situation is fect, and even places the burden of proof on different; the court gives permission to subthe accused of explaining the confession. stitute a plea and not merely to amend a The favor accorded the accused should not pleading. The permission granted necessibe transformed into a trap.

tates a trial, and at the trial the presump It is said that there is no difference in tion of innocence should not in effect be deprinciple between a plea of guilty inter- stroyed by the very plea that has been withposed in a preliminary hearing and with-drawn. Difference is suggested by the cir. drawn as of right before trial and a plea cumstance that in one case a pleading is withdrawn by permission. It seems to ine "amended”; in the other case a plea is withthat there is wide difference, both in prin-drawn and another “substituted." ciple and in practical effect, between the For these reasons it seems to me that the two cases.

When an accused chooses to judgments of the courts below should be replead guilty, knowing he has a right to with versed, and a new trial ordered. draw the plea, his acts and statements may be used to support any inference that may logically be drawn from them. Since the HISCOCK, C. J., and CARDOZO, POUND, subsequent withdrawal of the plea is a mat- and ANDREWS, JJ., concur with CRANE, J. ter of right and not of favor, no argument LEHMAN, J., reads dissenting opinion, in can be made that the plea was not know which MCLAUGHLIN, J., concurs. ingly and intentionally interposed, and no ground exists for declaring that the state Judgment affirmed.

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A. L. Gilliom, of South Bend, for appellant. CITY OF COLUMBUS v. RYNERSON.*

Geo. W. Long, of Columbus, for appellee. (No. 24890.) (Supreme Court of Indiana. Feb. 20, 1925.)

TRAVIS, C. J. Action by appellant against 1. Judges mw22(8)—Statute establishing pay appellee, instituted and prosecuted by the

of special judges held applicable to special Attorney General, pursuant to sections 7546y judges in city courts.

et seq., Burns' 1914, 7546j1 et seq., Burns' Burns' Ann. St. 1914, § 432, allowing spe- Supp. 1918, Acts 1917, p. 347, to recover cial judges sum of $5 per day for time actually money paid to appellee for services as a served, applies to special judges in city courts, special judge in the city court of appellant in view of Acts 1905, p. 219, c. 129, § 217 city, in excess of the amount alleged by ap(Burns' Ann. St. 1914, § 8843), providing that pellant to be due appellee. special judges in certain instances in city courts The complaint alleges: shall receive compensation allowed special judges in circuit courts.

"That the plaintiff is now, and was during the year 1917, a municipal corporation of the state

of Indiana. That on the 8th day of March, 2. Judges w22(8)—Statute establishing pay 11917, the defendant, John Rynerson, after be

of special judges held applicable to special ing duly appointed, acted as special judge in the Judges in city courts when acting in criminal city court of said city of Columbus in two cascases where change of venue has been taken.

That thereafter, on the 16th day of March, Under Acts 1905, p. 584, c. 169, as amended 1917, said defendant filed his claim with the (Burns' Ann. St. Supp. 1921, § 2075; Acts 1915, clerk of said city for his services rendered on p. 30, c. 14), concerning public offenses and not said day, said claim being numbered 21551, in providing compensation for judges, and section which claim he demanded and claimed the sum 2231 providing that in all criminal cases rules of ten dollars. That said claim was approved of pleading and practice in civil actions shall by H. K. Volland, mayor of said city. That govern so far as applicable, special judges in after said claim was filed as aforesaid, the city city courts, when acting in criminal cases where clerk of said city wrote and delivered a wara change of venue has been taken, are entitled rant payable to said defendant for ten dollars, to pay established by Burns' Ann. St. 1914, in payment for said services; said warrant be

ing numbered 8824. And that on a presenta8 432, in civil cases.

tion of said warrant to the treasurer of said

city by the defendant, said sum was received 3. Statutes em 188–Words and phrases to be by him from the treasury of such city. taken in ordinary and usual sense.

“That the defendant for said services renIn construction of all state statutes, words | dered by him on said day was only entitled to and phrases shall be taken in their plain or the sum of five dollars, and said excess amount ordinary and usual sense.

of five dollars was paid to him by mistake.

And that on the 9th day of July, 1917, the de4. Judges 22(8) - Special judge of city fendant, John Rynerson, after being duly ap

court held entitled to pay only for time ac- pointed, acted as special judge in the city court tually served.

of said city of Columbus in three cases; and Under Burns' Ann. St. 1914, § 432, allow on the 14th day of July, 1917, said defendant, ing special judge $5 a day for time actually after being duly appointed, acted as special ·served, a special judge of a city court organ- judge in the city court of said city of Columized under section 8843, whether named for a bus in five cases; and on the 11th day of July, particular case on account of a change of venue and on the 12th day of July, said defendant, from regular judge, or appointed because of after being duly appointed, acted as special temporary absence or inability of regular judge judge in the city court of said city of Columto act, was entitled only to $5 per day for time bus, in one case on each of said days. That actually served, regardless of number of cases thereafter, on the 21st day of July, 1917, said heard by him.

defendant filed his claim with the clerk of said

city for his services rendered on said days, Appeal from Circuit Court, Bartholomew said claim being numbered 22371, in which County; John W. Donaker, Judge.

claim he demanded and claimed the sum of Action by the City of Columbus instituted H. K. Volland, mayor of said city. That after

fifty dollars. That said claim was approved by by the Attorney General against John Ryner- said claim was filed as aforesaid, the city clerk

Judgment for defendant, and plaintiff of said city wrote and delivered a warrant pay. appeals. Transferred from Appellate Court able to said defendant for fifty dollars, in par. under Burns' Ann. St. 1914, $ 1394, cl. 2. Re- ment for said services; said warrant being versed and remanded, with instructions.

numbered 9844; and that on a presentation of Superseding former opinion in 135 N. E. said warrant to the treasurer of said city by

the defendant, said sum was received by him 360.

from the treasury of such city. That the *REPORTER'S Note.—This case as originally filed charges made on said claim for services renwas published in 146 N. E. 750. Since this filing and dered on July 9, 1917, amounted to fifteen dolpublication, changes in the opinion have been made lars, which sum was paid to the defendant for which, while not affecting the merits of the deci- said services rendered on said day. That for sion, make it necessary, in the interest of our sub- said services so performed by him on said day, scribers, to reprint the case here.

he was only entitled to the sum of five dollars. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

son.

(148 N.E.)
That the charges made on said claim for sery that a special judge shall receive in a city court
ices rendered on July 14, 1917, amounted to and the allowance in this case having been fixed
twenty-five dollars, which sum was paid to the by the city judge or mayor, and allowed by him,
defendant for said services rendered on said such allowance cannot be attacked. The judge
day. That for said services so performed by or mayor is the sole judge of the reasonable-
him on said day, he was only entitled to the ness of the fee allowed a special judge in that
sum of five dollars. That for said services set court. (5) The number of days served by the
out in said claim, said defendant was paid an special judge having been ascertained and fixed
excess amount of thirty dollars, which was paid by the city judge or mayor, is conclusive and
to him by mistake.

cannot be attacked,"
"That the total excess amount so paid to said
defendant as herein set out, to which he was
not entitled, was thirty-five dollars. That pri-

The court sustained appellee's demurrer or to the beginning of this action a demand

to the complaint, to which ruling of the court was made of the defendant for a repayment and appellant excepted, and, refusing to amend return of said sum of thirty-five dollars; and its complaint or plead further, the court renthat the defendant refused to repay or return

dered judgment for appellee, from which apsame, but still keeps and retains said sum. pellant appeals. Appellant assigns as error That said sum of thirty-five dollars is unpaid the action of the court sustaining the deand is due the plaintiff, with interest from the murrer to the complaint, which presents the dates of said excessive payments on each.

only question for consideration. "That heretofore, by the authority of the

The complaint is silent as to whether apstate examiner of the department of inspection and supervision of public offices, through Hor- pellee was appointed to act as special judge ace W. C. Fosdick and Thad L. Major, field because of the temporary absence or inabiliexaminers of said department, an examination ty of the regular judge to act, or to act in was made of the accounts of the city clerk of cases where changes of venue from the reguthe city of Columbus, for the period from Jan. lar judge had been requested and granted. uary 1, 1916, to December 31, 1917; and that Appellant and appellee agree that the sole reports of said examination so made were question involved in this appeal is the commade, signed, and verified in quadruplicate by pensation to which a special city judge is said field examiners, which reports were imme, entitled when acting in cases where changdiately filed with the said state examiner, and

es of venue from the regular judge have been after inspection by him, a copy of said reports was filed with the defendant, John Rynerson, requested and granted. Appellant contends one copy with the city of Columbus, and one

that the compensation allowed by the statcopy was placed by him with the Governor of ute is $5 per day, regardless of the number the state of Indiana; which last copy was of cases in which the special judge acts in transmitted by the Governor to the Attorney | any one day. Appellee contends there is no General. And the Attorney General hereby in- statute which provides for compensation of stitutes and prosecutes this civil proceeding

a special judge in a city court in cases where against the defendant, in order to carry into ef- changes of venue have been taken from the fect the finding resulting from such examina tion and to secure to the plaintiff the amount regular judge of such city court, on acdue it from the defendant as shown by said ex- | count of which situation the special judge amination.

would be entitled to such compensation as is "Wherefore plaintiff demands judgment allowed by the regular city judge or mayor; against the defendant for fifty dollars and all and the further proposition that in cases other proper relief."

where the special judge is appointed because Defendant filed his demurrer to the com of changes of venue, he is entitled to complaint upon the ground that it did not state pensation in each case separately, notwithfacts sufficient to constitute a cause of ac standing he acted in the several cases on the tion, alleging, by his memoranda in support same day. thereof, wherein the complaint was insuffi [1] Appellee admits that when a special cient for want of facts, consisting of the judge is appointed in a city court because following five particulars, to wit:

of the temporary absence or inability of the "Memoranda. (1) A special judge is entitled regular judge to act, the compensation for to $5 per day for each day's or part of a day's such special judge shall be the same as alservice in each case in which he has been ap- lowed "special judges in the circuit court.” pointed special judge. (2) Special judges are not appointed to serve for a day or any specific Sections 8843, 432, Burns' 1914. period of time, but are appointed in a particular

The act passed in 1881, entitled "An act case and are entitled to pay for services ren

concerning proceedings in civil cases" (Acts dered in the particular case.

(3) The law does 1881, p. 240, c. 38), of which section 432, suDot recognize part days in the services of spe- pra, is section 258 of the act, does not refer cial judges, but if they serve part of a day in to, neither is the act restricted to, either cira case they are entitled to pa for a day's sery cuit or superior courts. That act is general ice, and if called upon on the same day to ren

and section 258 of the act applies with as der services as special judge for part of a day much force to special judges of the city in other cases he would be entitled to his pay in such other case for a day's service and so courts as it does to special judges of any othon in any number of cases as he might serve as

er courts, except where other statutory prospecial judge in on any particular day. (4) | vision is made. The act creating the city The statute does not fix the amount of fees court (section 8843, Burns 1914; Acts 1905,

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p. 219. c. 129, $ 217) provides that a special, Appellant contends that section 432, sujudge in city courts shall receive compensa- pra, applies to the case at bar and that it tion allowed special judges in circuit courts, limits the allowance to $5 per day, and no where acting under an appointment made be more, notwithstanding more than one case cause of the temporary absence or inability was acted upon the same day, and that they of the regular judge to serve, but is silent were cases in which the appointment was concerning compensation for a special judge made because of changes of venue. This when acting as such under an appointment section of the statute provides: because of a change of venue. The act enti

"When a judge is called upon to preside in tled "An act concerning proceedings in civil the place of the regular judge, either at a reg. cases” (Acts 1831, p. 240), is general. It is ular or an adjourned term, whether selected neither addressed nor limited to circuit, from the bench or bar, he shall be allowed the courts, or to circuit and superior courts, but sum of five dollars per day for the time actuto all courts which exercise jurisdiction in ally served, and in going to and returning.

* Provided, that in all cases where a risdiction in civil cases, and hence come

special judge shall be called, the compensation

paid, as herein provided, shall be deducted within the scope of the act and are governed

from the pay of such regular judge, by it. The conclusion inevitably follows that except when such special judge is called to presection 432, Burns' 1914, supra, applies to side in cases on change of venue. special judges in city courts.

[2] The complaint is silent as to whether [3] In the construction of all statutes of the cases involved in this proceeding were this state, words and phrases shall be taken civil or criminal, or both. If some, or all, of in their plain or ordinary and usual sense. the cases in which appellee acted as special The words or phrases of the statute (section judge, were criminal, does section 432, 432, supra), necessary to its construction Burns' 1914, supra (section 416, R. S. 1881; are not technical. The signification of the Acts 1881, p. 240, c. 38, § 258), which con- statute is that the compensation to be al. cerns proceedings in civil cases, apply? In lowed special judges for services is limited, the recodification of the Criminal Code (Acts the limit being “the sum of $5 per day for 1905, p. 584, c. 169), section 204 of the act the time actually served, and in going to entitled, "An act concerning public offenses," and returning." as amended (section 2075, Burns' Supp. 1921; [4] The question arises, does section 432, Acts 1915, p. 30, c. 14), provision was made supra, apply to special judges when appointfor a special judge where a change of venue ed because of a change of venue, as well as is taken from the regular judge. This sec. when called upon to preside in the place of tion of the act is not limited to any special the regular judge, either at a regular or an court, but is general, and includes special adjourned term? The section of the act itjudges in cases where the change of venue self includes special judges in cases where is taken from the regular judge of a city a change of venue has been taken, by providcourt, except where it is provided otherwise. ing. that in certain circumstances the comThis amendment to the statute, section 204, pensation of the special judge shall not be supra, does not provide compensation, but deducted from the pay of the regular judge, leaves it to other specific or general laws, as shall be done in all cases where the proif there are any such. By section 344 of this viso of this section of the act does not apply. same act (section 2231, Burns' 1914), it is It is therefore held that section 258 of the provided that, “In all criminal cases, where act concerning proceedings in civil cases, no special provision has been made in this passed in 1881 (section 432, Burns' 1914), proact, the rules and practice in civil actions vides the allowance permitted to a special shall govern, so far as applicable." Under judge of a city court organized pursuant to the authority of this section of the statute, the act concerning municipal corporations special judges in city courts, when acting (Acts 1905, p. 377, § 217; section 8843, Burns' in criminal cases, where a change of venue 1914), whether it be where such special judge has been taken, are governed by the statute is named for a particular case on account in civil cases, which is section 432, supra. of a charge of venue from the regular judge, Boos v. State (1914) 181 Ind. 562, 105 N. E. or is appointed because of the temporary 117.

absence or inability of the regular judge to It remains to consider and decide wheth- act, and that the allowance for such service er section 432, supra, gives authority to al shall be $5 per day for the time actually low compensation of $5 per day in each case, served. The demurrer to the complaint of two or more cases, when the special judge ought to have been overruled. acts on two or more cases the same day, and Judgment reversed, and the case remandwhen the appointment to such special judgeed to the trial court which is instructed to is for each case separately, because of chang- overrule the demurrer to the complaint and es of venue from the regular judge. This for further proceedings. question of the construction of this section of the statute is one of first impression. GEMMILL, J., not participating.

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