Sawyer v. State
| Decision Date | 19 November 1941 |
| Docket Number | A-9880. |
| Parties | SAWYER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. It is not error for the trial court to refuse to allow evidence to be presented to the jury of a proposed agreement upon the part of the county attorney to dismiss the case being tried if the defendant would plead guilty in two other cases, as such agreement, if made, was a matter to be addressed solely to the court and was not a defense to the crime charged.
2. Upon a motion to dismiss, if it is shown that an unfair advantage has been taken of the defendant by inducing him to enter a plea of guilty in other cases under a promise that the charge upon which he is being tried would be dismissed, which agreement was made in the presence of the court, with his silent acquiescence or expressed consent, the Criminal Court of Appeals will reverse the conviction.
3. Personal knowledge of a trial judge of former proceedings had before him is not a matter for disqualification, nor is he disqualified to sit in a case because he has recently sat at the trial of another cause growing out of the same state of facts which resulted in a conviction.
4. Proof of other shortages in his accounts, as treasurer for a school district, may be admitted in evidence upon the trial of defendant for embezzlement of funds from the school district to show a general system, scheme or plan of embezzlement, and to prove the intent with which the act alleged to have been perpetrated was done.
5. Evidence held sufficient to support conviction of embezzlement, where proof shows that defendant, as school treasurer, was delivered a warrant belonging to the school district, cashed the warrant, and there was no record showing the disposition of the proceeds of said warrant, and it is not accounted for in any manner by any of the books or records of the school district.
Appeal from District Court, Cotton County; Toby Morris, Judge.
W. E Sawyer was convicted of embezzlement, and he appeals.
Affirmed.
Walter Hubbell, of Walters, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.
The defendant was charged by an indictment presented and filed by a grand jury of Cotton County with the crime of embezzlement, was tried, sentenced to serve three years in the State Penitentiary, and pay a fine of $263.64, and he has appealed to this court.
The indictment charges the defendant with having, on or about the 4th day of July, 1933, while acting as Treasurer of the City of Walters School District No. 1, of Cotton County, embezzled the sum of $131.82 belonging to said school district.
It is first contended that the court erred in sustaining an objection by the state to evidence offered by the defendant concerning a compromise settlement between the county attorney and the defendant, wherein it was contended by the defendant that the state had agreed to dismiss the present case upon condition that the defendant plead guilty in two other cases then pending.
The record discloses that the same contention was set forth by the defendant in a motion to dismiss, presented to the court before the trial began.
Evidence was introduced by the defendant in support of his motion to the effect that on the 31st day of October, 1938, he had four felony cases pending in the District Court of Cotton County. That he had a discussion with the county attorney and the assistant attorney general, wherein it was agreed that if he would enter his plea of guilty in two of said cases and receive a four-year sentence in each, the sentences to run concurrently, that the other two cases then pending against the defendant would be dismissed. That in pursuance to this agreement and understanding, the defendant entered his pleas of guilty in cases Nos. 648 and 653, and was sentenced to serve four years in the State Penitentiary in each of said charges, with the further provision that said sentences would run concurrently. That he was immediately committed to the State Penitentiary and served until the 7th day of January, 1939, at which time he obtained a parole from the Governor of the State of Oklahoma.
The assistant attorney general testified in response to the proof of the defendant on said motion to dismiss that negotiations were had both with the defendant and his attorney in the office of the county attorney; that the cases were set for trial at that time; that so far as the attorney general's office was concerned, he agreed that if the defendant would plead guilty in the two perjury charges, he would recommend a sentence of four years each, which might run concurrently. That the attorney for the defendant then asked if they would thereupon dismiss the remaining cases, to which the assistant attorney general replied they would not do so as they had been unable to keep a convicted public official in prison under the Marland Administration, and they were going to hold these cases back as a guaranty against a parole. That they did agree that if the defendant would plead guilty in the two cases and serve the full time on those two sentences, the other cases would not be pressed and would ultimately be dismissed.
In connection with this contention of the defendant, the court dictated the following statement into the record:
The attorney for the defendant admits in his brief that such an agreement, if made as contended by the defendant, would not be a defense to the charge for which he was being tried.
Of course, if the matter is not a defense to the charge, there is no legal foundation for the submitting of the same to the jury. The facts were submitted fully to the court in the hearing upon the motion to dismiss. The court in passing upon said motion evidently accepted the version of the assistant attorney general as being correct as to the result of the conference had with the defendant and his attorney, and overruled the motion to dismiss.
While this contention may not properly be a matter of defense, we feel it proper to state that this court would unhesitatingly reverse this case if the record had disclosed that an unfair advantage had been taken of the defendant by inducing him to enter a plea of guilty in two cases under a promise that two other cases would be dismissed, which agreement was made in the presence of the court with his silent acquiescence, if not expressed consent, but the record herein does not support such a state of facts.
The defendant next contends that the court erred in...
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