
    White v. Commonwealth.
    (Decided Sept. 21, 1910.)
    Appeal from Bell Circuit Court.
    Rape — Flea oí Guilty by Advice of Counsel. — On a plea of guilty in a rape case by a boy of 16 on a girl of 8 years of age, where the jury fixed the death penalty. Held, that the defendant being represented by an attorney of high standing, who advised bis client to plead guilty and take the chance of getting a life imprisonment; there having been hung juries on two previous trials, the verdict will not be reversed.
    N. J. WELLER, and WELLER & POINTS for appellant.
    JAS. BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for appellee.
   Opinion of the Court by

Chief Justice Barker

Affirming.

The appellant. James White, was indicted by. the grand jury of Bell county, charged with, the offense of rape, committed upon the person of Mossie Woodard,' an infant female about 8 years of age. When his case was called for trial, the record shows that he personally waived a formal arraignment, and entered a plea of guilty; whereupon the jury returned a verdict of guilty in accordance with the plea, and fixed his punishment at death. (1

Afterwards, a motion foi’ a new trial was entered, and grounds filed, all of which was overruled by the court and the sentence of the law pronounced.

One of the grounds urged by appellant for a reversal of the judgment is that one of his counsel, J. B. Weller, was sick and unable to attend the trial; that Mr. Weller was opposed to the plea of guilty, and if he had been there would not have permitted it to be made; that the record shows that the boy was only about 17 years of age and his mind .so weak' that he practically was unable to judge of what was best for him in the situation in which he was placed. In response to this, it may be said that the defendant was represented on the trial by O. V. Biley, a reputable attorney of high standing at the bar, who had been appointed by the court and who was thoroughly familiar with every phase of the case. No continuance was asked because of the absence of Mr. Weller, and no motion for a change of venue was made because of any supposed difficulty in the defendant’s securing a fair and impartial trial in Bell county. Mr. Riley, with ail the facts before him, and after a most mature consideration, and having fully discussed the situation with the accused, was of opinion that it would be better for his client to plead guilty and take a chance of the jury, in their discretion, fixing the punishment at life imprisonment, than to try out the case under a plea of not guilty and having ail of the evidence detailed to the jury; and being of this opinion, he permitted his client to waive a formal arraignment and enter a plea of guilty. There may be a difference of opinion as to whether this course was wise, but there is no suggest,on of a lack of good faith on the part of counsel, and the accused can not now complain that the jury, who had a discretion in the matter, fixed his punishment at death instead of imprisonment for life. If the accused desired the presence of Mr. Weller at his trial, he- should have made known to the court this fact and asked a continuance of the case in order to secure his presence on another day; and if he felt that he could not secure a fair and impartial jury in Bell county, he should have made a motion for a change of venue. Failing to do either of these things, as said before, he can not now complain because of the absence of one of his counsel, or that the jury, exercising their legal discretion, awarded the highest penalty known to the law by their ver diet. To reverse the judgment of tli’é court in this case under these- circumstances, would be to make a trial for crime a mere, mockery.

It is also complained on this appeal, that the trial court orally instructed the jury, instead of reducing the instruction to writing. As a matter of fact, while the court did orally tell the jury their duty under a plea of guilty, he subsequently reduced it to. writing and sent it to the- jury room before a consideration of the case had taken place. It seems -to us that this was a substantial compliance with the Code provision requiring instructions to be given in writing.

A careful consideration of this -record convinces us that no substantial right of the accused was violated by anything which took place upon the trial. On the contrary, we believe his interests were looked after carefully and faithfully by his counsel; and while he did not succeed, by entering the plea of guilty, in having the verdict fixed at life imprisonment instead of death, still, having taken his chance on that theory, he can not have a new trial because it failed to accomplish the desired end.

In conclusion, we deem it proper to say that Mr. Eiley had been the attorney for the accused from the first, whereas Mr. Weller, the absent counsel, had come into the case at a later period. Mr. Eiley, therefore, was equally as familiar with the facts of the case as Mr. Weller. There had been two triáis prior to the one at which the conviction was had. On the first trial the accused had pleaded guilty, and the jury disagreed on the question of punishment, it being said that eleven were for the death penalty and one for life imprisonment. On the second trial a plea of not guilty wa,v entered, and the jury were again unable to agree, standing ten for the death penalty and two for life imprisonment. These facts are important to show that Mr. Eiley, when he permitted his client to plead guilty on the third trial, was thoroughly conversant with the case, and was in a position to have a very decided opinion as to what was best for his interest. Moreover, the record shows that he consulted with several high officials in the county, who had taken an interest in seeing that the defendant had justice done him, and- they concurred in the belief that it was best for. the defendant to plead guilty. . ■ . .

For the foregoing reasons, we are constrained to the conclusion that the interests of the defendant were carefully guarded throughout the trial, and that no error was done -to any of his substantial rights.

Judgment affirmed.  