1. Continuance— Admission of Affidavit as Evidence—An admission by the Commonwealth that the defendant in a criminal case can prove the facts set out in his aflidavit for a continuance, and that it may be read in evidence to the jury, is not suflicient to justify the court in requiring the defendant to go to trial in the absence of his witnesses, if it appear, from his affidavit, that their evidence is material for his defense, and he has used proper diligence to procure their attendance.

2. To authorize the withdrawal of a plea of guilty after verdict, there must exist such reasons as would be suflicient to justify the granting of a new trial.

3. If the defendant is induced to enter a plea of guilty by the threats or promises of the court or attorney for the Commonwealth, and is thereby overreached or deceived even in respect to the extent of punishment, permission should be given.even after verdict, to withdraw the plea and substitute a plea of not guilty, a new trial being granted for that purpose.

4. A plea af guilty does not deprive the Commonwealth of the right to introduce evidence bearing upon the question of punishment where the offense charged is of different degrees, or is punishable in the discretion of the jury in different degrees of severity, unless such plea has been entered upon the faith of a promise by the court or attorney for the Commonwealth that the minimum punishment will be inflicted.

W. M. Connolly for appellant.

S. G. Kinner and P. W. Hardin for appellee.
Appeal from Pike Circuit Court.

Opinion of the court by Chief Justice Lewis.

It appears from the bill of exceptions that when the case was called for trial, the attorney for the Commonwealth announced the plaintiff ready, but appellant submitted a motion for continuance, based' on an affidavit, and thereupon the attorney for the Commonwealth admitted the defendant could prove the facts set out in his afiidavit, and that it might be read in evidence to the jury. Such an admission is not sufficient to justify the court in requiring a defendant to go to trial in the absence of his Witnesses, if it appear, from his affidavit, their evidence is material for his defense, and he has used proper diligence to procure their attendance. But as the -affidavit is not before us, we cannot say the statements contained in it were sufficient to entitle the defendant to a continuance. Moreover, it appears he withdrew the affidavit, and then, in open court, entered a plea of guilty to the charge of murder contained in the indictment, and the jury, having been duly impaneled and sworn, after hearing the evidence of one witness, returned a verdict of guilty, fixing the punishment at death.

On the day following the verdict the defendant entered a motion to permit him to withdraw the plea of guilty and enter a plea of not guilty accompanying which motion was a statement, to the effect that he was induced to enter the plea of guilty, believing the jury would be merciful to him and spare his life, but that the attorney tor the Commonwealth introduced as a witness the mother of the person killed. and the character and manner of her testimony was such as calculated to arouse the passions and prejudices of the jury, and to induce them to inflict the severest penalty. He further stated that he believed, if permitted to have a full and fair trial of the charge against him, his life will at least, be spared. But the motion was overruled, as was also the one made for a new trial, which was based on the grounds of refusal of the court to permit him to withdraw the plea of guilty, and error in permitting the introduction by the Commonwealth of the witness after the plea of guilty had been entered.

Sec. 174, Crim. Code, is as follows: “At any time before judgment the court may permit the plea of guilty to be withdrawn, and a plea of not guilty substituted.’

Though it is provided in that section the plea may, with permission of the court, be withdrawn at any time before judgment, obviously the intended effect of such proceeding, if occurring after the verdict of the jury has been rendered, is to retry the case, and, consequently, to authorize it to be then done, there must exist such reasons as would be suflicieut to justify the granting of a new trial. A plea of guilty is inevitably followed by conviction of the offense charged in the indictment, and the only question left open in such case is the nature and extent of punishment to be inflicted, which is still within the legal discretion of the jury. Nevertheless if the court or attorney for the Commonwealth, by threats or promises, induces a defendant in a criminal prosecution to enter a plea of guilty, and he is thereby overreached or deceived, even in respect to the extent of punishment, permission should be given to him to withdraw the plea and substitute a plea of not guilty, although a verdict has been rendered, a new trial being granted for that purpose.

But it appears the defendant in this case voluntarily and of his own motion, without persuasion or promise by either the court or Commonwea1th’s Attorney, entered the plea of guilty, the nature of which he was aware of. And the only reason given for asking permission to withdraw the plea is, that the attorney for the Commonwealth was permitted by the court to introduce a witness, who testified concerning the circumstances under which the murder charged was committed. We do not think the Commonwealth can, by the voluntary act of a defendant entering a plea of guilty, be deprived of the right to introduce evidence bearing upon the question of punishment when the offense charged is of different degrees, or is punishable, in the discretion of the jury, in different degrees of severity, unless such plea has been entered upon the faith of a promise or assurance by the court or attorney for the Commonwealth, the minimum punishment will be inflicted.

In this case no such promise or assurance was given ; on the contrary it appears the attorney for the Commonwealth gave notice that, notwithstanding the plea of guilty, he would insist on the introduction of the witness, who did testify; and although the record shows the defendant objected to the testimony of that witness, when offered, no motion was then made for permission to withdraw the plea of guilty and substitute a plea of not guilty.

It seems to us that as the defendant, of his own volition, took the risk of the jury inflicting the penalty of death for the crime of murder. of which he pleaded guilty, it was not error to overrule his motion to withdraw the (plea, and perceiving no error of law in any other respect occurring uring the trial to the prejudice of his substantial rights, we are constrained to aifirm the judgment.