Rudolph v. State

• Citation: 240 P. 761,32 Okla.Crim. 265
• Decision Date: 16 November 1925
• Docket Number: A-5266.
• Parties: RUDOLPH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

240 P. 761

32 Okla.Crim. 265

RUDOLPH v. STATE.

No. A-5266.

Court of Criminal Appeals of Oklahoma

November 16, 1925

Syllabus by the Court.

A plea of guilty in a capital case should be accepted cautiously and not until after the defendant has been fully advised by the court of his rights and the consequences of his plea, and the court has been satisfied that the defendant has acted voluntarily, and with full knowledge, appreciation, and understanding of the nature and consequences of his plea.

The granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the trial court, and its action must be upheld until an abuse of such discretion clearly appears.

Where two or more persons are jointly informed against, the state may use one of such defendants, either before or after conviction, as a witness against the others, without first dismissing the prosecution against the defendant so used as a witness.

Before any person can secure immunity under section 27 of article 2 of our Constitution, on account of incriminatory evidence given by him as a witness for the state, such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify.

Appeal from District Court, Oklahoma County; James I. Phelps, Judge.

Tom Rudolph was convicted of murder, and he appeals. Affirmed.

E. J Giddings, of Oklahoma City, for plaintiff in error.

George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.

DOYLE J.

This appeal is from a judgment of conviction of murder and sentence of imprisonment at hard labor in the penitentiary for life, rendered upon a plea of guilty, entered by appellant, Tom Rudolph, upon his arraignment on an information charging him and others with the crime of murder.

The information filed in the district court of Oklahoma county January 18, 1924, charged that Frank Brumley, Eustace Knight Herman Fox Davis, and appellant, Tom Rudolph, did, in said county, on the 9th day of November, 1923, kill and murder Paul J. McCarthy by shooting him with a pistol, then and there held in the hands of the defendant Frank Brumley.

The several assignments of error present but two questions: First, whether the court erred in denying appellant's motion for leave to withdraw his plea of guilty and plead not guilty; second, whether the court erred in overruling his motion for a new trial.

It appears that the defendant Frank Brumley upon his separate trial was convicted, and in accordance with the verdict of the jury was sentenced to imprisonment at hard labor in the penitentiary for life; that the defendant Herman Fox Davis on his separate trial was convicted, and in accordance with the verdict of the jury was sentenced to imprisonment at hard labor in the penitentiary for life, from the judgment an appeal was taken to this court, and by its decision was affirmed (Davis v. State [Okl. Cr. App.] 237 P. 471); that the defendant Eustace Knight pleaded guilty, and was by the court sentenced to imprisonment at hard labor in the penitentiary for life.

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." Section 2621, C. S. 1921.

It has been uniformly held by this court that if a defendant in a criminal case enters a plea of guilty, it is within the discretion of the court whether it will allow the plea to be withdrawn and a plea of not guilty substituted.

The record shows: That upon arraignment the defendant was represented by counsel, and after the reading of the information the following proceedings were had:

"The Court: Mr. Rudolph, do you desire to enter a plea to this charge at this time?

Defendant Rudolph: Yes, sir.

The Court: What is that plea, Mr. Rudolph?

Defendant Rudolph: Guilty.

The Court: You understand, do you, that if you enter a plea of guilty that it will be necessary for the court to either sentence you to life imprisonment or to the electric chair?

Defendant Rudolph: Yes, sir.

The Court: And understanding that you desire to enter a plea of guilty, do you?

Defendant Rudolph: Yes, sir.

The Court: You do this of your own free and voluntary act, freely and voluntarily, enter this plea of guilty? You haven't been coerced or induced by promises from any one, any of the officers or any one else, to enter this plea of guilty?

Defendant Rudolph: No, sir.

The Court: All right; let pleas of guilty be entered on the part of Mr. Knight and Mr. Rudolph."

That this plea was entered January 19, 1924.

It appears that at the time defendant Rudolph was arraigned the county attorney handed to the court two separate statements previously made by the said defendant Rudolph; that the court examined and read the same before judgment and sentence was passed upon the defendant on February 9, 1924, which statements are confessions, purporting to show all the facts and circumstances in connection with the homicide.

It appears that on February 9th the following proceedings were had:

"The Court: Are you ready for sentence Mr. Smith?

Mr. Gomer Smith: Yes, sir.

The Court: You have entered a plea of guilty to the charge of murder here several days ago and sentence was deferred. Are you each ready now to be sentenced? Are you ready, Mr. Rudolph, for the sentence to be imposed?

Defendant Rudolph: Yes, sir.

By the Court: I might say that a few minutes ago the telephone rang, and I answered the phone, and some lady answered, saying she was Mr. Giddings' stenographer, and she said Mr. Giddings had filed an application to have the plea heretofore entered withdrawn. Is that true? What are the facts about it?"

Whereupon Mr. Gomer Smith, counsel for the defendant, stated in substance that, having learned that E. J. Giddings was claiming to represent these defendants, he went to the county jail, and they informed him that they had not employed E. J. Giddings to represent them; that he did not represent them; that they still wanted him to represent them; that he was their counsel, and he would like to have the court inquire of these defendants what their desire is or what authority E. J. Giddings has to present the application for withdrawal of the plea.

"The Court: As I understand, the provisions of the law is to do justice and not to take advantage of the court, and I want you young men to understand that no advantage is going to be taken in this court. If you desire to, you have the privilege of withdrawing your plea and going to trial before a jury; if you do not desire to do that and desire your plea to stand as it is, why then, in the degree of punishment, the court will follow the recommendation of the county attorney. The county attorney has never agreed to a recommendation or told me what to do along that line. With that statement, Mr. Knight, is it your desire that your plea of guilty heretofore entered stand as your plea?

By Defendant Eustace Knight: Yes, sir.

The Court: And Mr. Rudolph, is it your desire that your plea heretofore entered of guilty to the charge, stand as your plea?

By Defendant Tom Rudolph: Yes, sir.

The Court: Well, then; is it the desire of you, Mr. Knight, to withdraw your plea?

Defendant Knight: No, sir.

The Court: Is it yours, Mr. Rudolph?

Defendant Rudolph: No, sir.

The Court: Then, does Mr. Smith, who

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