Opinion
No. 6,936.
Submitted January 19, 1932.
Decided February 27, 1932.
Cities and Towns — Police Officers — Conviction of Felony Under Federal Law on Plea of Nolo Contendere — Nature of Plea — Removal from Office — Proper Denial of Writ of Mandate to Compel Reinstatement. Criminal Law — Nature of Plea of Nolo Contendere — Admission of Guilt. 1. In criminal law the plea of nolo contendere does not create an estoppel, but, like the plea of guilty, is an admission of guilt for the purposes of the case; the person interposing it is at liberty in another proceeding to relitigate the fact of his guilt or innocence.
1. Plea of non vult contendere in capital case, see note in 6 A.L.R. 700. See, also, 8 R.C.L. 117 (3 Perm. Supp., p. 2188). Cities and Towns — Police Officers — Conviction of a Felony Under Federal Law Under Plea of Nolo Contendere — Removal from Office — Mandamus to Compel Reinstatement — Proper Denial of Writ. 2. A city policeman, charged in the federal district court with conspiracy (to violate the Jones Act, 27 U.S.C.A., secs. 91, 92), declared a felony by section 88, 18 U.S.C.A., was, upon his plea of nolo contendere, sentenced to pay a fine. Section 511, Revised Codes of 1921, provides that an office becomes vacant upon conviction of the incumbent for a felony. The police commission upon charges filed found him guilty of the crime charged and the mayor ordered his dismissal. Held, in mandamus proceedings to compel reinstatement, as against the contention that under the plea of nolo contendere no issue was presented as to his guilt or innocence, that under the rule above the plea was as conclusive as a plea of guilty would have been, for the purpose of determining whether he had been convicted of a felony within the meaning of section 511, supra, and that therefore his office became automatically vacant. (See, also, State ex rel. Anderson v. Fousek, ante, p. 448.)
Appeal from District Court, Cascade County; W.H. Meigs, Judge.
MANDAMUS by the State, on the relation of David T. McElliott, against Albert J. Fousek, as Mayor of the City of Great Falls. From the judgment, relator appeals. Affirmed.
Messrs. Molumby, Busha Greenan, for Appellant, submitted a brief; Mr. L.J. Molumby argued the cause orally.
Mr. Warren Toole, for Respondent, submitted a brief and argued the cause orally.
Citing on the point that under the plea of nolo contendere no issue was presented authorizing an adjudication of guilt: Commonwealth v. Shrope, 264 Pa. St. 246, 6 A.L.R. 690, 107 A. 729; Commonwealth v. Ingersoll, 145 Mass. 381, 14 N.E. 449; State v. LaRose, 71 N.H. 435, 52 A. 943; Commonwealth v. Tilton, 8 Met. (Mass.) 232; Lafferty v. Houlihan, 81 N.H. 67, 121 A. 92; Tucker v. United States, 196 Fed. 260, 41 L.R.A. (n.s.) 70, 116 C.C.A. 62. Subsequent to the decision in the Tucker Case, supra, it was in one particular modified by the decision in the case of Hudson v. United States, 272 U.S. 451, 71 L.Ed. 347, 47 Sup. Ct. Rep. 127. In the Hudson Case the only question raised by the assignments of error was whether or not the federal court, after accepting a plea of nolo contendere, may impose a prison sentence. The authority relied upon by appellant was the Tucker Case. There were two points involved in the Tucker Case. By the first, Justice Seaman decided that it was improper to accept a nolo contendere plea in a case where a prison sentence was mandatory; by the second, Justice Seaman decided that a judgment rendered upon a plea of nolo contendere did not in any way adjudicate guilt. Justice Stone, in the Hudson Case, says that Justice Seaman was in error as to the first proposition, and although the Tucker Case was thus by it discussed and modified, the supreme court did not find it advisable to overrule the Tucker Case on the second point, which point is here important, namely: that a judgment rendered upon a nolo contendere plea does not involve an adjudication of guilt. Tacitly, at least, the supreme court of the United States has approved the decision in the Tucker Case on that particular point. We contend, therefore, that the Tucker Case is binding upon this court, in point on all-fours, and must be followed in its decision of the instant case.
The contention of the respondent is not that a record showing a conviction on a plea of nolo contendere is admissible in a collateral proceeding to show that the defendant was guilty, or that he committed the acts charged in the indictment, but the contention is that such record is competent in any proceeding to establish the sole probative fact that he was found guilty or that he was convicted, whether innocent or not, a matter wholly different from actual guilt or actual commission of illegal acts, which latter matters are not material to the issues. (See Commonwealth v. Horton, 9 Pick. (26 Mass.) 206; United States v. Hartwell, 3 Cliff. 221, Fed. Cas. No. 15,318; Buck v. Commonwealth, 107 Pa. St. 486; State v. Henson, 66 N.J.L. 601, 50 A. 468; State v. Herlihy, 102 Me. 310, 66 A. 643; Hill v. Maxwell, 77 N.J.L. 766, 73 A. 501; Johnson v. Johnson, 78 N.J. Eq. 507, 80 A. 119; Commonwealth ex rel. District Attorney v. Jackson, 248 Pa. St. 530, 94 A. 233; State v. Duelks, 97 N.J.L. 43, 116 A. 865; State v. Radoff, 140 Wn. 202, 248 P. 405; Fisher v. United States, (C.C.A.) 8 F.2d 978, 981.)
In Tucker v. United States, 196 Fed. 260, 116 C.C.A. 62, 41 L.R.A. (n.s.) 70, cited by appellant, the court said, in reference to a plea of nolo contendere, that "no adjudication of guilt" was authorized on such a plea, and without discussion predicated this statement expressly, by citation, on Commonwealth v. Horton, 9 Pick. (Mass.) 206, and Commonwealth v. Ingersoll, 145 Mass. 381, 14 N.E. 449, both of which cases are anything but authorities for such statement. The Tucker Case not only flies in the face of all of the decisions and overlooks the earlier federal case of United States v. Hartwell, 3 Cliff. 221, Fed. Cas. No. 15,318, but in addition thereto is contrary to the recent case of Roitman v. United States, (C.C.A.) 41 F.2d 519, holding that a judgment of guilt following such a plea is not erroneous, and which case in turn is expressly predicated upon the most recent utterances of the supreme court of the United States, which are to be found in United States v. Norris, 281 U.S. 619, 74 L.Ed. 1076, 50 Sup. Ct. Rep. 424. The holding in the Tucker Case that upon the acceptance of a plea of nolo contendere the court may not impose a prison sentence upon the defendant has, moreover, been nullified by the decision in Hudson v. United States, 272 U.S. 451, 71 L.Ed. 347, 47 Sup. Ct. Rep. 127, which case incidentally in the first paragraph in reference to the judgment in the court below refers to the same as a "conviction." Let it further be observed that the Roitman Case was decided by the same circuit court of appeals as the Tucker Case, and, accordingly, the Roitman Case overrules the Tucker Case in that circuit. The Tucker Case has been only mentioned in this brief inasmuch as the appellant McElliott places his entire reliance thereon.
It is submitted that neither historical background nor sound reasoning will support any theory working an estoppel against the use of the judgment and sentence, rendered upon a plea of nolo contendere, to establish the fact that a defendant was found guilty of a crime or the fact that he was convicted, where, as here, his actual guilt or the actual commission of the acts charged in the indictment were not in issue and were wholly irrelevant. Such limited use of a judgment reciting the acceptance of such a plea does not estop the appellant McElliott from denying his guilt or proving his innocence nor is it an admission on his part of his guilt or of his commission of the acts charged in the indictment. These he is free to relitigate if and when the occasion should ever arise, but in the present case they were wholly immaterial.
The facts of this case are identical with those in case No. 6929, State ex rel. Anderson v. Fousek, ante, p. 448, 8 P.2d 791, this day decided, except that relator here was not sentenced upon a verdict of the jury but upon a plea of nolo contendere. On the authority of that case, the judgment here must be affirmed unless a different result must follow because of the plea of nolo contendere interposed by relator to the indictment in the United States district court.
Relator contends that, since the only evidence offered before [1, 2] the police commission to prove that he "has been found guilty of any crime" is the judgment of the federal court entered on the plea of nolo contendere, the judgment of the district court cannot be sustained, for he asserts that under the plea of nolo contendere no issue was presented authorizing an adjudication of guilt. In the briefs of respective counsel the nature and origin of the plea of nolo contendere as announced by the courts has been reviewed at great length. We deem it unnecessary to review the decisions of state courts on the subject. Relator's chief reliance in support of the point above stated is upon the case of Tucker v. United States, 196 Fed. 260, 41 L.R.A. (n.s.) 70, 116 C.C.A. 62 (Seventh Circuit). The United States supreme court has settled this question against the contention of relator. Mr. Justice Stone, speaking for that court in the case of Hudson v. United States, 272 U.S. 451, 71 L.Ed. 347, 47 Sup. Ct. Rep. 127, 129, in considering the effect of this plea, said: "Like the implied confession, this plea does not create an estoppel; but, like the plea of guilty, it is an admission of guilt for the purposes of the case." In that opinion it was pointed out that the decisions of the seventh circuit were out of harmony with judicial decisions elsewhere. Thereafter the seventh circuit, in the case of Roitman v. United States, (C.C.A.) 41 F.2d 519, held that judgments of conviction were not erroneous on a plea of nolo contendere. Again the United States supreme court, in the case of United States v. Norris, 281 U.S. 619, 74 L.Ed. 1076, 50 Sup. Ct. Rep. 424, 425, said: "After the plea [being one of nolo contendere], nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record. Regarded as evidence upon the question of guilt or innocence, the stipulation came too late, for the plea of nolo contendere, upon that question and for that case, was as conclusive as a plea of guilty would have been." As noted from these cases, the plea does not create an estoppel, and hence the person interposing the plea is at liberty in another proceeding to relitigate the fact of his guilt or innocence.
But the only issue before the police commission, the lower court and this court was whether relator had been convicted of a felony. The question of actual guilt or innocence was not and is not involved in these proceedings. ( In re Peters, 73 Mont. 284, 235 P. 772.)
It follows that the judgment must be, and is, affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur.