A plea of guilty withdrawn by leave of court is not admissible
against the defendant on the trial of the issue arising on a
substituted plea of not guilty. P. 274 U. S.
12 F.2d 904 reversed.
Page 274 U. S. 221
Certiorari (273 U.S. 685) to a judgment of the circuit court of
appeals affirming a conviction and sentence in the district court
in a prosecution for using the mails to defraud.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Petitioner was indicted in the District Court for the Western
District of Arkansas under § 215 of the Criminal Code for using the
mails to defraud. He pleaded guilty, and thereupon the court
sentenced him to the penitentiary for three years. Afterwards he
filed a petition alleging that he was induced so to plead by the
promise of one of the prosecuting attorneys to recommend to the
court that he be punished by sentence of three months in jail and
by fine of $1,000, and by the statement of such attorney that the
court would impose that sentence. The petition asserted that the
sentence given was excessive, and prayed to have it set aside and
the punishment alleged to have been promised substituted. The
United States denied the allegations of the petition. After hearing
evidence on the issue, the court declined so to change the
sentence, but, on petitioner's motion, set aside the judgment and
allowed him to withdraw his plea of guilty and to plead not guilty.
At the trial, the court, against objection by petitioner, permitted
the prosecution as a
Page 274 U. S. 222
part of its case in chief to put in evidence a certified copy of
the plea of guilty. The petitioner, in defense, introduced the
court's order setting aside the sentence and granting leave to
withdraw that plea. Then both sides gave evidence as to matters
considered by the court in setting aside the conviction. The court
charged the jury:
"The plea of guilty is introduced as evidence by the government.
. . . If you find that Mr. Kercheval made that plea of guilty and
that no promise was held out to him for the purpose of getting him
to make that plea, or if you find that he was notified before he
made the plea that nothing that was ever said to him with reference
to it theretofore would be met, then it is evidence for you to
consider in connection with the other evidence in the case. If . .
. you find that he was deceived, that this was brought about by
conversations that he had had with reference to it, and that he
made that plea of guilty when as a matter of fact he was not
guilty, then you will disregard that particular part of it and
consider just the other testimony in the case."
The jury returned a verdict of guilty, and the court sentenced
petitioner to the penitentiary for three years. The circuit court
of appeals affirmed the judgment. 12 F.2d 904. It said (p.
"In the motion made by defendant to set aside the judgment, he
admits that he had pleaded guilty. The purpose was to reduce the
punishment, but if this failed, he asked to withdraw his plea, and
that the judgment be set aside. We know of no reason why the plea
of guilty was not admissible under all these circumstances for what
it might be worth. It was not conclusive of guilt, and the court so
instructed the jury. The defendant probably knew better than any
one else whether or not be was guilty. Under the evidence in this
case, a plea of guilty upon his part would have seemed a very
reasonable thing. We see no substantial or prejudicial error in the
admission of any of
Page 274 U. S. 223
the evidence complained of."
The case is here on certiorari. 273 U.S. 685.
In support of the rulings below, the United States cites
Commonwealth v. Ervine,
8 Dana (Ky.) 30, People v.
165 App.Div. 721, State v. Carta,
79, People v. Boyd,
67 Cal. App. 292, 302, and People
240 N.Y. 411. The arguments for admissibility to
be gleaned from these cases are that the introduction of the
withdrawn plea shows conduct inconsistent with the claim of
innocence at the trial; that the plea is a statement of guilt
having the same effect as if made out of court; that it is received
on the principle which permits a confession of the accused in a
lower court to be shown against him at his trial in the higher
court; that it is not received as conclusive, and, like an
extrajudicial confession, is not sufficient without other evidence
of the corpus delicti.
It is sometimes likened to prior
testimony of the defendant making in favor of the prosecution.
Other decisions support the petitioner's contention that a plea
of guilty withdrawn by leave of court is not admissible on the
trial of the issue arising on the substituted plea of not guilty.
Heim v. United States,
47 App.D.C. 485; State v.
99 Mo. 107, 119; People v. Ryan,
82 Cal. 617;
Heath v. State,
(Okla.) 214 P. 1091. And see White v.
51 Ga. 286, 289; Green v. State,
40 Fla. 474,
478. We think that contention is sound. A plea of guilty differs in
purpose and effect from a mere admission or an extrajudicial
confession; it is itself a conviction. Like a verdict of a jury, it
is conclusive. More is not required; the court has nothing to do
but give judgment and sentence. Out of just consideration for
persons accused of crime, courts are careful that a plea of guilty
shall not be accepted unless made voluntarily after proper advice
and with full understanding of the consequences. When one so
Page 274 U. S. 224
he may be held bound. United States v. Bayaud,
721. But, on timely application, the court will vacate a plea of
guilty shown to have been unfairly obtained or given through
ignorance, fear, or inadvertence. Such an application does not
involve any question of guilt or innocence. Commonwealth v.
212 Mass. 209. The court, in exercise of its
discretion, will permit one accused to substitute a plea of not
guilty and have a trial if for any reason the granting of the
privilege seems fair and just. Swang v. State,
(Tenn.) 212; State v. Maresca,
85 Conn. 509; State v.
46 Mont. 470, 472; State v. Stephens,
Mo. 535; People v. McCrory,
41 Cal. 458, 461; State v.
113 La. 717, 720; Bishop's New Criminal Procedure, §
The effect of the court's order permitting the withdrawal was to
adjudge that the plea of guilty be held for naught. It subsequent
use as evidence against petitioner was in direct conflict with that
determination. When the plea was annulled, it ceased to be
evidence. By permitting it to be given weight, the court reinstated
it pro tanto. Heim v. United States, supra,
The conflict was not avoided by the court's charge. Giving to the
withdrawn plea any weight is in principle quite as inconsistent
with the prior order as it would be to hold the plea conclusive.
Under the charge, if the plea was found not improperly obtained,
the jury was required to give it weight unless petitioner was shown
to be innocent. And, if admissible at all, such plea inevitably
must be so considered. As a practical matter, it could not be
received as evidence without putting petitioner in a dilemma
utterly inconsistent with the determination of the court awarding
him a trial. Its introduction may have turned the scale against him
. "The withdrawal of a plea of guilty is a poor privilege if,
notwithstanding its withdrawal, it may be used in evidence under
the plea of not guilty." White v. State, supra,
289. It is
Page 274 U. S. 225
mark to say, as observed by the circuit court of appeals, that
petitioner knew better than anyone whether or not he was guilty,
and that, under the evidence, a plea of guilty was a reasonable
thing. These suggestions might bear upon the weight of admissible
evidence, but they have no relation to the admissibility of a
Courts frequently permit pleas of guilty to be withdrawn and
pleas of not guilty to be substituted. We have cited all the
decisions, state and federal, which have come to our attention that
pass on the question here presented. The small number indicates
that, in this country, it has not been customary to use withdrawn
pleas as evidence of guilt. Counsel have cited no case, and we have
found none, in which the question has been considered in English
We think the weight of reason is against the introduction in
evidence of a plea of guilty withdrawn on order of court granting
leave and permitting the substitution of a plea of not guilty.
MR. JUSTICE STONE concurs in the result.