Heath v. State

• Decision Date: 21 May 1923
• Docket Number: A-4168.
• Citation: 214 P. 1091,23 Okla.Crim. 382
• Parties: HEATH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

214 P. 1091

23 Okla.Crim. 382

HEATH v. STATE.

No. A-4168.

Court of Criminal Appeals of Oklahoma

May 21, 1923

Syllabus by the Court.

A withdrawn plea of guilty, for which a plea of not guilty is substituted by authority of court, is not admissible in evidence against the defendant.

Appeal from District Court, Grady County; Edward Dewes Oldfield Judge.

Jim Heath was convicted of burglary, and he appeals. Reversed and new trial awarded.

Barefoot & Carmichael, of Chickasha, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE J.

This appeal is from a judgment of conviction for burglary and sentence of 2 years' imprisonment in the state reformatory at Granite. In the view we have taken of the disposition necessary to be made of this case, it is neither important nor necessary to consider more than one of the many questions presented in the record and briefs.

The record shows that on the 21st day of March, 1921, the day after defendant was arrested, charged with the crime of burglary, he was taken before the district court of Grady county and entered his plea of guilty, and was sentenced to serve a term of 3 years in the penitentiary; that defendant was then under 21 years of age; that his father, who resided in the town of Chickasha, did not know of his son's sentence until after the same had been pronounced by the court; that he immediately employed a firm of lawyers to represent defendant. A motion was filed, asking leave to withdraw the plea of guilty theretofore entered and to set aside the judgment thereon, and 3 days after said judgment was rendered the court set aside the judgment and permitted defendant's plea to be withdrawn and a plea of not guilty substituted.

On the trial in the following October, the court, over the defendant's objection, permitted the state to introduce in evidence the record showing his plea of guilty and the judgment rendered thereon. The court clerk also testified that, when the defendant entered his plea of guilty, there was nobody present, except the sheriff, the county attorney the district judge, and himself. The Attorney General has filed a confession of error, on the ground that the trial court committed prejudicial error in permitting the prosecution to introduce the record showing the plea of guilty theretofore entered by defendant.

Our Code of Criminal Procedure provides:

"The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted." Comp. Stats. § 2621.

In the case of Jenkins v. State, 6 Okl. Cr. 516, 120 P. 298, it is said:

"In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, if the defendant had entered a plea of guilty without the benefit of counsel, or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be considered an abuse of judicial discretion."

In Rupert v. State, 9 Okl. Cr. 226, 131 P. 713, 45 L. R. A. (N. S.) 60, it is said:

"The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. * * * This power is inherent in all courts of record."

Upon this question Wharton says:

"Where a plea of guilty is withdrawn by the permission of the court, it is not binding as a confession, nor can it be used as evidence." Wharton on Crim. Ev. vol. 2, § 638, p. 1326."

In Ruling Case Law, vol. 8, p. 112, § 77, it is said:

"It is hardly necessary

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