
    The State of Ohio v. Ferranto.
    
      Criminal law — First degree murder — Duty of court in accepting plea of guilty — Permission to change plea from not guilty to guilty, discretionary — Court may 'determine degree of crime and impose death penalty — Discretion not abused by imposing sentence -loithout hearing additional evidence.
    
    1. A plea of guilty in a capital offense should be accepted cautiously, and the trial judge should fully advise the accused of his rights in the premises, and be satisfied that he acts willingly, freely, and deliberately after being so advised, and with knowledge, appreciation, and understanding of the nature and consequences of such plea of guilty.
    2. The granting permission to withdraw a plea of not guilty and interpose a plea of guilty is a matter within the sound discretion of the trial court, and, if it appear that the accused has been properly advised of his rights, the action of the court in so receiving a plea of guilty will not be disturbed unless some abuse of discretion affirmatively appears.
    3. Upon a plea of guilty to an indictment for murder in the first degree, the trial court 'has power, without the intervention of a jury, to determine upon evidence the degree of the crime, and, in the event the same be found to be murder in the first degree, to withhold or extend mercy. (State v. Habig, 106 Ohio St., 151, 140 N. E., 195, approved and followed.)
    
      
       Criminal Law, 16 O. J. §737;  Criminal Law, 16 C. J. §731; Criminal Law, 17 C. J. §3575 (1926 Anno).
    
      4. Where, upon a trial for murder in the first degree, all the evidence has been introduced, including that of the accused testifying in his own behalf, and after both sides have rested and the state has concluded its opening argument, the defendant, upon advice of counsel, and after being cautioned and admonished as to his rights by the court, withdraws his plea of not guilty and enters a plea of guilty, it is not an abuse of discretion for the trial judge, who heard all the evidence introduced in the case, in determining the degree of the crime the same day while the evidence was fresh in his mind, to find the defendant guilty Of murder in the first degree with no extension of mercy, without -hearing anew the evidence relating thereto; it not appearing that new evidence was tendered by the accused after he had entered a plea of guilty.
    (No. 18916
    Decided May 19, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    The defendant in error, Cosmo Ferranto, was indicted by the grand jury of Cuyahoga county for the offense of murder in the first degree, charged with killing one Ernest Ferritto, purposely and of deliberate and premeditated malice, on January 16, 1919. Ferranto was not apprehended for some time, but about four years later he was arrested in Providence, R. I., said to have been living there under an assumed name, brought back to Cleveland, and, having been duly arraigned, entered a plea of not guilty, and was placed on trial before a petit jury in the common pleas court of Cuyahoga county, on November 5, 1923. The trial lasted until Monday, November 12, when, at the conclusion of all the evidence in the case, both sides had rested, and, the state having completed its opening argument, the defendant, in open court, by and with the advice of his counsel, and upon full inquiry and explanation by the trial judge, withdrew his former plea of not guilty and entered a plea of guilty of general homicide, which plea was accepted by the court; and the court, proceeding to determine the degree of the crime and pronounce sentence accordingly, determined that Ferrante was guilty of murder in the first degree, finding nothing to warrant a recommendation of mercy.
    
      
       Criminal Law, 16 C. J. §§3013 (1926 Anno), 3040; 1 Criminal Law, 16 C. J. §3013 (1926 Anno).
    
      The journal entry of the Court of Appeals discloses that “the judgment of the said common pleas court is reversed for error of the court in discharging the jury and accepting a plea of guilty in the manner that it was done, and in finding the defendant guilty of murder in the first degree without hearing testimony after the plea was entered. No other error appearing in the record, this cause is remanded to said court of common pleas for further proceedings.”
    In view of the fact that this reversal involves, among other things, the alleged abuse of discretion by the court of common pleas, it is, necessary to advert to the evidence in the case and the facts as shown by the record upon which the trial court based its judgment.
    
      On the day in question, January 16, 1919, the defendant, who had been a boarder in the Ferritto family, came home from his work as a laborer with a plumber, having been assisting upon a job on Quincy avenue, near 105th street, not far from Colonial Court, where the Ferritto family lived. At about noon, or shortly thereafter, he appeared at the Ferritto' residence dressed in working clothes, and, finding the children at home on their noon recess from school, Ferranto gave the daughter, a school child, 5 cents, to go to school, and told two of the boys to go outside and get a stone and a nail and he would help them fix a flag. Mrs. Ferritto and Ernest Ferritto, the decedent, a child of tender years, were the only ones left in the basement room, generally used as a kitchen by the Ferrittos. Mrs. Ferritto claims to have been engaged in mending clothes when the defendant, Ferranto, approached her and made known his desire to have improper relations with her. Mrs. Ferritto testifies that the defendant swore at her and persisted in his demands, that a struggle ensued, and that he knocked her down, and that in the struggle, Mrs. Ferritto having been thrown to the floor several times, the defendant, Ferranto, drew a knife and began to stab her, and the small child, Ernest Ferritto, who seems to have come to his mother’s side during the altercation; the wounds inflicted upon Ernest Ferritto proving fatal. Mrs. Ferritto, covered with blood as a result of the many .wounds upon her, continued the unequal struggle, calling for help, and the defendant, Ferranto, being unable to accomplish his purpose, and doubtless fearing apprehension, fled from the room, locking the door on the ontside. The two boys who were outside were stabbed by him in his flight, and a neighbor, Paul Polatino, seeing Mrs. Ferritto covered with blood, came to the scene of the homicide, and, being told the direction in which Ferranto had fled, pursued him for a short distance; Ferranto, waving his bloody knife, warned him, when the neighbor Paul Polatino came within 60 or 65 feet, and said:
    “What are you going to do? Do you want to catch me? If you catch me, you see what I got in my hand? I will do the same to you what I did to the lady and the kid.”
    The defendant escaped, and, after having gone to Toledo, found his way to Providence, E. I., where he is said to have lived under an assumed name until apprehended. The mother, Mrs. Camelia Ferritto, the two boys, Dominic and Tony, were taken to the hospital and remained for some time, recovering from the wounds. The child, Ernest Ferritto, was also taken to the hospital and died shortly thereafter, as a result of the wounds inflicted on the day in question by Ferranto, in the county of Cuyahoga and the state of Ohio.
    Upon the trial, the defendant took the stand in his own behalf and testified, in substance, that he had some wine stored in the Ferritto house, and that upon Ms return from work he found Mrs. Ferritto taking wine from the barrel and putting it into a bottle. The defendant claims to have protested with Mrs. Ferritto for taking his wine, and that an altercation ensued in which Mrs. Ferritto struck the defendant over the eye with a bottle, that this blow stunned him, and that Ms memory of what transpired after that is very vague, and that he does not. remember anything except, in a general way, his fleeing and sleeping that night in a park and making his way to Toledo, where he had treated the wound which he claims to have sustained on his forehead, and from thence he went East.
    The trial had progressed several days. The testimony on behalf of the state was concluded, and the defendant was on the stand testifying in his own behalf when, on Friday, November 5, court adjourned until Monday morning at 9:15 o’clock; the adjournment taking place about 3 o’clock in the afternoon, we are informed by counsel. Upon the incoming of court on Monday morning, the examination of the defendant was continued, and two witnesses were called by the defendant, who testified to the good character of the accused, and a third who testified to the fact of having seen Mrs. Ferritto drink wine on some occasion.
    The defendant having no other witnesses in attendance, the court declined to longer delay the trial, admonishing counsel that they had had since Friday afternoon at 3:30 to secure the attendance of such witnesses as they might desire, and that, no subpoenas having been served, the court had po power to issue a capias, and ordered the trial to proceed.
    Thereupon Mr. Williams delivered the state’s opening argument to the jnry.
    'Court and counsel confer.
    “Court: Ladies and gentlemen of the jury, a proposition of law is about to be given to the court. It is a matter that does not concern the jury and perhaps what goes on between court and counsel should not be heard in your presence. I want you to adjourn to your jury rooms for a short period of time until you are again sent for. Bear in mind the usual admonition.”
    Thereupon, at 11 a. m., the jury retired from the courtroom.
    “Defendant’s Plea.
    “Mr. 'Costello: At this time, your honor, we plead the defendant guilty, under the statute — I think it is 13692 — to general homicide, after having talked to the defendant.
    “Court: You have talked to him, and does he understand the nature of the charge and the responsibility of a plea of that kind, and that it is then placed in the hands of the court to determine the degree of the crime?
    “Mr. Costello (to interpreter): Explain that to him.
    “Court: Mr. Interpreter, you tell this defendant, Cosmo Ferranto, that his lawyer in open court confesses his guilt to homicide as charged in this indictment, and ask him if that is his confession, and if he stands by that confession made by his attorney in open court, and if it is his confession.
    “The Interpreter: He does, he says.
    “Court: Does he fully realize the punishment that is carried into effect after an open confession in court of homicide?
    “The Interpreter: He is satisfied, your honor.
    “Court: And does he understand that the case is now taken from the jury, and that the court determines what his punishment is to be?
    
      “The Interpreter: He is satisfied with what you do.
    “'Court: He fully realizes, does he?
    “The Interpreter: He says, ‘Yes.’
    “Court: You say to him then that, after he has pleaded guilty to murder as charged in this indictment, that the court finds him guilty, after having heard all of this evidence and having had plenty of time to make up my mind, that the court finds no chance of a recommendation of mercy, and the court finds him guilty of murder in the first degree.
    “Mr. Costello: Exception.
    “The Interpreter: ‘I leave it to you,’ he says.
    “Court: And I shall pass sentence on you on Saturday morning, November 17, 1923, at 9:30 a. m.
    “The Interpreter: ‘All right,’ he says.
    “Court: Call the jury.”
    Thereupon at 11:05 a. m. the jury was recalled to the court room.
    “Court: Ladies and gentlemen of the jury, in your absence, and the court thought it was proper for you to be excused, for fear that this defendant might want to change his plea after he had offered his confession in open court, and you might have had to continue with this case, but at this time counsel for this defendant, after fully advising this defendant of his rights, and after the court has fully advised him of his rights, has openly confessed in court to his guilt of murder as charged in this indictment. It will therefore relieve you of any further responsibility in this case. The court has accepted that plea, and so has the state and the prosecutor. The court has already found him guilty then, after having heard all of this evidence, of murder in the first degree without a recommendation of mercy. That, I think, should have been your verdict in this case. 'Oounsel have made a stubborn fight, with nothing to fight on. His only defense here was a transitory spell of insanity which was assumed for the purpose only of establishing some sort of a defense. This is one of the worst murders that occurred ini Cuyahoga county. It was a butcherous murder; This man went to the home of this woman, knowing that her husband was not at home, for the purpose of raping this woman. He tried to accomplish it. Seven or eight times he tried to throw her to the floor in that basement for that purpose, and when he became enraged he stabbed her and left her, as he thought, dead. And, ini order to destroy all the evidence, he tried to kill all those little children. He failed in three cases, but the little child could not withstand the stab wounds • inflicted upon him. It was a brutal murder, and the court will never have on his conscience the regret of finding him guilty of murder in the first degree, and it should have been the verdict of this jury. Send for the sheriff, and have him take the prisoner to the county jail until Saturday morning.”
    The record further discloses that on November 17 the defendant was brought into court in the custody of the sheriff, and his counsel also appearing, and sentence of electrocution was passed upon the defendant. A motion for new trial having been overruled, and exceptions noted, a bill of exceptions was duly prepared and error proseeuted to the Court of Appeals. Upon consideration by that court, the judgment of the court of common pleas was reversed, and the cause remanded for a new trial; the journal entry of the Court of Appeals disclosing as heretofore noted. Error is now prosecuted to this court to reverse such finding by the Court of Appeals.
    
      Mr. Edward G. Stanton, prosecuting attorney, for plaintiff in error.
    
      Messrs. Costello & Kriesberg, for defendant in error.
   Day, J.

Was there an abuse of judicial discretion by the trial court (1) “in discharging the jury and accepting a plea of guilty in the manner that it was done;” (2) “and in finding the defendant guilty of murder in the first degree, without hearing testimony after the plea was entered?” What is judicial discretion?

Bouvier’s Law Dictionary gives this definition:

“Abuse of discretion. A discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.”

The term is comprehensively defined in 18 Corpus Juris, p. 1185, as follows:

“This authority may be said, in a general way, to be the power of the judge to rule and decide as his best judgment and sound discretion dictate; and the term ‘judicial discretion’ or ‘discretion of the court’ is usually employed as designating the power mentioned. There are different kinds of discretion that may be exercised by the trial court; there is a discretion in the right to decide as the court pleases, or in the decision of what is just and proper under the circumstances, or according to the judgment of the court; but in all cases courts must exercise a discretion in the sense of being discreet, circumspect, and prudent, and exercising cautious judgment. * * * However incapable of exact definition, it is clearly recognized that discretion is not absolutely without elements, conditions, or limitations. The term implies the absence of a hard and fast rule, yet it should not be another word for ‘arbitrary will,’ ‘inconsiderate action,’ or ‘unstable caprice.’ ”

Other definitions as made by the courts are as follows:

In Sharon v. Sharon, Exr., 75 Cal., 1, 16 P., 345, the court said:

“ ‘Abuse of discretion’ * * * does not necessarily imply a willful abuse, or intentional wrong. In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason — all the circumstances before it being considered.”

In Murray v. Buell, 74 Wis., 14, 41 N. W., 1010, this definition was given:

“The term * * * as used in the decisions of courts and in the books, implying, in common parlance, a bad motive or wrong purpose, is not the most appropriate. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.”
“Where the court does not exercise a discretion in the sense of being discreet, circumspect, prudent, and .exercising cautious judgment, it is an abuse of discretion.” Words and Phrases.

In the light of the foregoing definitions, was there an abuse of discretion “in discharging the jury and accepting a plea of guilty in the manner that it was done?” The statutory mandate in that behalf is brief in our Criminal Code, being Section 13633, General Code, which provides:

“If the accused plead ‘guilty,’ such plea shall be entered on the indictment, and he shall be placed in the custody of the sheriff until sentence. ’ ’

It is undoubtedly the privilege of a defendant in a criminal case to withdraw his plea of not guilty and tender a plea of guilty at any time before sentence; yet the trial judge should be satisfied that such plea is entered by the accused understandingly, with due consideration and forethought and not by deception or fraud, but in a full conception of his legal rights.

Some jurisdictions deny the right of a judge to refuse to receive a plea of guilty, and compel the accused against his will to plead not guilty and submit to a trial, in a case in which he elects to plead guilty after being advised properly as to the nature of his act and its consequences.

In the case of State v. Branner, 149 N. C., 559, 63 S. E., 169, it is said by the judge rendering the opinion:

“It is well to add that a judge cannot compel a defendant, against his will, to plead not guilty and submit to a trial, for undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty instead of denying the charge, yet, in proportion to the gravity of the offense, the court should exercise caution in receiving this plea, and should see that he is properly advised as to the nature of his act and its consequences. This is a matter which is left to the good judgment and discretion of the court, which should be exercised so as to protect a defendant from an improvident plea and to prevent injustice. 1 Bishop’s New 'Or. Procedure, Section 795.”

In capital cases we think the discretion is certainly vested in the trial judge whether or not he will accept a plea of guilty. Such a plea should be accepted cautiously, and not until the court has advised the accused of his rights in the premises, and been satisfied that the accused has acted freely and deliberately after being so admonished, and that he does so with full knowledge and appreciation and understanding of the nature and consequences of such plea of guilty.

An examination of this record discloses that, upon the tender of the plea of guilty, the court inquired of his counsel as to whether or not he had talked to the accused, and whether the accused understood the nature of the charge and the responsibility of a plea of that kind, and that by so doing he would place in the hands of the court the duty to determine the degree of the crime; and further the court required the interpreter, the defendant not being able to speak English, to tell the defendant that his lawyer in open court confessed his guilt to homicide, as charged in the indictment, and told the interpreter to ask the accused if that was his confession, and if he stood by that confession made by his attorney in open court, and if it was his confession, to which the accused replied, through the interpreter, that he did so understand; and the court further asked the accused, through the interpreter, whether he fully-realized the punishment that would be carried into effect after an open confession in open court of homicide, and again the accused replied, through the interpreter, that he was satisfied; and the trial judge, pursuing the inquiry further, asked the interpreter to inquire of the accused whether he understood that the case would be taken from the jury and the court determine what the punishment was to be, and the accused replied that he was satisfied with what the court did. The court inquired further as to whether he fully realized what he. was doing, and the accused replied that he did.

We think that the trial judge fully appreciated the great responsibility that rested upon him, and that he exercised proper care to fully advise the defendant of his rights in the premises, the nature and consequences of his plea of guilty.

The accused was defended by two attorneys of the Cuyahoga county bar in good standing, and we are led to the conclusion that this plea was entered by the accused and his counsel with full knowledge, appreciation, and understanding of the nature and consequences of the plea of guilty.

The motives for changing the plea to guilty, after the introduction of all the evidence and at the conclusion of the opening argument by the state, may have been the hope that the degree of crime and penalty fixed therefor would be less if fixed by the court than by the jury, but the fact that such belief proved to be unfounded is no ground for finding that there was an abuse of discretion on the part of the trial judge when all the evidence in the case would have supported such a finding had it been returned by a jury. The evidence in this case is sufficient to support a verdict of murder in the first degree, with no recommendation for mercy.

It is suggested in argument that too short a period of time elapsed from the time the jury were asked to retire when the plea of not guilty was withdrawn and the plea of guilty entered. The preliminary steps looking to that end had taken place between the court and counsel, we are advised by the bill of exceptions, before the jury retired. Now the trial had been in progress from Monday, November 5, to Monday, November 12, excluding Saturday and Sunday, making '6 trial days. The trial judge was undoubtedly thoroughly familiar with every phase of the case from the evidence received upon both sides, and, even though the record shows that the return of the jury was 5 minutes after being excused, the conclusions of the trial judge may well have been reached in so short a period, after having had opportunity for 6 days of consideration of the various phases of the case.

Much was said in argument concerning the refusal of the trial judge to longer delay the trial by reason of the absence of a witness, a doctor, who it was said would testify concerning hypothetical questions proposed to be put to him concerning the effect of a blow on the head, as bearing upon the question of the ability of the accused to form an intent and purpose to kill.

Now it is the claim of the defendant that he surprised Mrs. Ferritto in the act of taking wine from a barrel belonging to him and putting it into a bottle, and that, in the altercation that followed, Mrs. Ferritto struck him with a bottle, and that after that he does not remember what took place. Mrs. Ferritto denies all of this and testifies:

“He swore to the Virgin Mary like ‘God damn, I have something I want to tell you.’ Then he said he wanted to take my honor, and then I pushed him back, and he knocked me down. * * *
“Q. What did you do after he wanted to stay with you? A. While he was grabbing me to throw me on the ground I was pushing him, and he threw me down.
“Qi. Tell us from there on everything that .happened in your home that morning? A. After he threw me down, then he took a knife and killed [stabbed] me, and the way he did to me he did to the child.
“Q. What did he do to you, after he threw you down on the floor* with the knife? A. I was dead [insensible]; I don’t know. * * *
“Q. What did you see in his hands, if you saw anything? A. All I know is that he took the knife out and came near me and began to hit.
“Q. Where did he hit you with the knife, if he hit you any" place? A. Around the head, on the shoulders, and all over.
“Q. Will you step down and show the jury if there are any marks in the places where you were struck with the knife? [Witness indicates on her body.]”

The state claims that the ability of the defendant to think clearly is evidenced by his attempt to kill the remaining members of the family, in addition to Mrs. Ferritto and Ernest, to-wit, Dominic and Tony, so that no one would be left who could testify as to what took place; his¡ flight and threats against his pursuer, Paul Polatino, indicate a mind capable of appreciating the nature of his act and his purpose to kill any one who stood in the way of his escape.

If the defendant had some witness who would express an opinion favorable to the accused upon the state of facts disclosed by this record, the state of Ohio afforded opportunity for the production of such witness by compulsory process. The defendant did not see fit to avail himself thereof. The trial had been going <on from November 5 to November 12, with an adjournment from Friday afternoon to Monday morning. The court, upon being notified the defendant expected to call a doctor as a witness, admonished counsel that he should be in attendance. Another witness was called, and at the conclusion of his testimony a second request for delay was made, the court reminding counsel of the time that the trial had been in progress, and that no attempt had been made to secure the attendance of the witness by law, and that the court could not aid by issuing a capias, having no jurisdiction over the witness, that the delay from Friday to Monday was ample to arrange for the attendance of the witness, and for all these reasons declined longer to delay the trial.

Was there an abuse of discretion in so doing? From the nature of court procedure much latitude must be given the trial judge in the conduct of the cause before him. Unless that discretion appears to have been abused, it should not be disturbed. In this instance it is apparent that reasonable diligence could have secured the attendance of any witness the defendant desired, and we cannot say that there was an abuse of discretion by the court in refusing to longer delay the trial.

After the plea of guilty was entered, no offer of evidence appears of record, nor does the record disclose that the witness in question ever did appear. While the plea of guilty was entered on Monday, and the deg'ree of crime determined with no recommendation of mercy, sentence, it was announced by the trial judge, would not be imposed until the following Saturday. Nothing appears of record that any attempt was made in any way to bring to the attention of the court, by motion or otherwise, anything that would assist the court in further consideration of the matter.

From a careful reading of the record presented, and a full consideration thereof, this court is unable to affirmatively find that there was an abuse of discretion on the part of the trial judge in receiving the plea of guilty in the manner in which it was done.

This brings us to the second inquiry — whether there was an abuse of discretion in finding the defendant guilty of murder in the first degree without hearing the testimony anew after the plea of guilty was entered.

It has been settled ini this state that, upon a plea of guilty under an indictment for murder in the first degree, a judge may hear evidence and determine, without the intervention of a jury, the degree of the crime and decline to extend mercy, fixing the punishment by death. Craig v. State, 49 Ohio St., 415, 30 N. E., 1120, 16 L. R. A., 358; Conrad v. State, 75 Ohio St., 52, 78 N. E., 957, 6 L. R. A., (N. S.), 1154, 8 Ann. Cas., 966; State v. Habig, 106 Ohio St., 151, 140 N. E., 195.

The accused had the option to submit to the determination, either of the jury or the court. He chose the latter, after being fully advised as to his rights. On a plea of guilty thus entered, the accused was in the same situation he would have been had the jury found him guilty. In the latter event, the jury would have proceeded to consider the evidence adduced at the trial and reach a determination whether it would recommend mercy or not. Howell v. State, 102 Ohio St., 411, 131 N. E., 706, 17 A. L. R., 1108. After the plea of guilty, why may not the trial judge do the same thing as the jury would have done, to wit, consider the same evidence that the jury would have considered and reach his conclusion in like manner?

The trial judge had heard all the evidence pertaining to the homicide under investigation. Not only had the evidence for the state been given, but the evidence on behalf of the accused, including the testimony of the defendant himself.

It is said in the case of State v. Habig, supra, on page 166 of the opinion (140 N. E., 199), by Marshall, C. J.:

“The accused has confessed his guilt of homicide, thereby waiving the determination of a jury upon that question, but has not waived all consideration of the question of mercy. No legislative provision having been made for impaneling a jury after a confession of guilt in open court, it must be held that the Legislature intended that all functions of the jury that could be exercised in defendant’s behalf might lawfully be exercised by the court.”

Therefore, if the function of extending mercy to the accused might have been exercised by the jury upon the evidence adduced in the case before it, the conclusion would necessarily follow that the like function devolving upon the court could be discharged by considering the same evidence which the jury would have considered.

We are therefore of opinion that under the circumstances disclosed by this record there was no abuse of discretion by the court proceeding in the manner that he did without hearing. all over again the evidence as to the facts and circumstances of the homicide in order to determine the question of extending mercy to the accused; said evidence being fresh in his mind after a 6-day trial.

Further, no affirmative profert of evidence appears in the record in any way, by motion or otherwise, after the plea of guilty was entered.

The accused had a right to a fair trial, by the law of the land, and his legal rights should be protected in every degree; but, having received such protection, it was equally the duty of the trial judge, being conversant with the entire matter and having heard the evidence touching the circumstances of the homicide, to pronounce a judgment which should mete out even-handed justice, not only for the accused, but also for the protection of the state of Ohio.

Finding no abuse of discretion nor other error apparent on the face of the record, it becomes our duty to reverse the judgment of the Court of Appeals and affirm the judgment of the court of common pleas.

Judgment of the Court of Appeals reversed, amd, that of common pleas affirmed.

Marshall, C. J., Jones, Matthias, Allen and Kinkade, JJ., concur.  