State v. Chestnutt

• Decision Date: 03 July 1931
• Docket Number: 29,878
• Parties: THE STATE OF KANSAS, Appellee, v. A. J. BEASLEY and FRED CHESTNUTT, Appellants
• Court: Kansas Supreme Court

300 P. 1103

133 Kan. 438

THE STATE OF KANSAS, Appellee, v. A. J. BEASLEY and FRED CHESTNUTT, Appellants

No. 29,878

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW--Plea of Guilty--Right to Withdraw. The circumstances under which defendants, who were charged in two counts of grand larceny for the theft of ore from their employer's zinc mine, made an agreement with the prosecuting attorney whereby the first count was dismissed and they pleaded guilty to the second, which agreement and all the proceedings relating thereto, including defendants' pleas of guilty were had and taken under advice of competent and experienced lawyers, considered, and held, that defendants' applications for permission to withdraw their respective pleas of guilty were properly denied.

Al F. Williams, of Topeka, Don H. Elleman, Charles Stephens, C. E. Rumery and C. R. Stauffacher, all of Columbus, for the appellants.

Roland Boynton, attorney-general, R. O. Mason, assistant attorney-general, Marc G. Boss, county attorney, and Forrest D. Smythe, assistant county attorney, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment overruling defendants' applications for permission to withdraw their pleas of guilty to a charge of grand larceny.

The salient facts were these: The Eagle-Picher Lead Company operated a zinc mine in Cherokee county. Defendant Beasley was its superintendent and defendant Chestnutt was its mill foreman. These two defendants conceived a plan to steal a few loads of zinc ore from their employer. They hired one Campbell to haul away and sell the stolen ore, instructing him to come to their employer's mine after working hours. He did so, and repeated thefts of ore were thus made intermittently for several months. Campbell delivered the stolen ore to a dealer named Moore, who paid for it by checks, some of which were drawn in favor of "F. F. Chestnutt, agent," and some in the name of "C. & B. Mining Company." Defendants received and cashed these checks, and after paying Campbell for the hauling they divided and pocketed the proceeds.

Eventually Campbell began to do some thieving of ore on his own account, which culminated in prosecutions for grand larceny against all three of these persons. Beasley and Chestnutt were bound over to the district court on two counts--one for the theft of a load of ore valued at $ 319.66 on November 30, 1929, and another for the theft of a similar load valued at $ 234 on December 7, 1929.

In the prosecution of Campbell defendant Chestnutt was used as a witness and he frankly told of these systematic larcenies and particularly of the theft of two loads on the evening of December 6, 1929. On that night Beasley and Chestnutt wanted Campbell to return for a third load; Campbell said he could not do so; but some hours later (apparently after midnight) he did return and stole another load of ore on his own account. Defendant Beasley's testimony was to the same general effect as that of Chestnutt.

While the trial of Campbell was progressing negotiations were opened by attorneys for Beasley and Chestnutt with the county attorney to have them plead guilty to one count upon condition that the other count against them should be dismissed. The county attorney agreed. One of the negotiators raised the question as to which count they were to plead guilty. Another said it did not make any difference; and the county attorney said, "We will dismiss the first count and you can plead guilty to the second." This arrangement was then presented to the court, defendants being represented by well-known and experienced lawyers; and the court being fully advised, received defendants' pleas of guilty.

Later counsel for defendants obtained a written stipulation signed by the county attorney (who has since retired) reciting that he did not have any evidence to prove that defendants had committed the theft of the particular load of ore on December 7, 1929, which was the subject matter of the charge in the second count of the information. On the strength of that stipulation and admission this application to withdraw the pleas of guilty was based. The trial court's adverse ruling on that application is the basis of this appeal.

Counsel for defendants argue that the stipulation shows clearly that they were laboring under a misapprehension of the facts when they entered their pleas of guilty. This court is unable to discern the faintest shadow of a misapprehension. The fact that defendants did not actually participate in the theft of the particular load of ore which Campbell hauled away sometime after midnight, December 7, was of no importance. Defendants confessedly stole two loads of ore before midnight--the...