State v. McDowall

• Decision Date: 13 December 1938
• Docket Number: 27238.
• Citation: 85 P.2d 660,197 Wash. 323
• Parties: STATE v. McDOWALL.
• Court: Washington Supreme Court

85 P.2d 660

197 Wash. 323

STATE v. McDOWALL.

No. 27238.

Supreme Court of Washington

December 13, 1938

Department 2.

J. K McDowall was convicted of grand larceny, and he appeals.

Affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Clay Nixon, of Seattle, for appellant.

R. Gray Warner and Charles C. Ralls, both of Seattle, for respondent.

BEALS Justice.

August 6, 1937, J. K. McDowall, defendant herein, was charged with the crime of grand larceny, the information containing fourteen counts. By count 1, defendant was charged upon the alleged taking of $2,000 from one Ilma Kaler, by means of false and fraudulent pretenses and representations. Shortly after his arrest, the defendant was released on bail. August 24th, he was arraigned, and on the 31st of the same month pleaded not guilty to each count. October 16th following, the case was set for trial November 3d. It. was, for some reason stricken from the trial calendar, and reset for February 14, 1938. February 5th, defendant's motion for a continuance was denied, and February 9th, on defendant's motion, the presiding judge assigned the cause to department 5 for plea. On the same day, defendant appeared Before Honorable Hugh C. Todd, who was then presiding over department 5 of the superior court for King county, defendant's counsel being present, whereupon in open court defendant withdrew his plea of not guilty, and pleaded guilty to count 1 of the information. His motion to defer sentence to April 1st, and a motion to defer pleas on the remaining counts to April 1st, were granted. Apparently nothing was done April 1st, but April 7th, defendant, by motion, asked leave to withdraw his plea of guilty to count 1, and for leave to plead not guilty to that count. April 8th, Judge Todd granted this motion, the court's minute entry reading:

'Defendant's motion to withdraw plea of guilty to Count I--Granted, and trial set for May 12 on all counts, subject to approval of date by Presiding Judge.'

April 23d, in the department of the presiding judge, the case was set for trial for May 31st. May 28th, the defendant, appearing Before Honorable Robert M. Jones, who was then acting as presiding judge, in open court withdrew his plea of not guilty, and entered a plea of guilty to count 1. July 1st following was then fixed as the date of sentence, it appearing that defendant requested that the time of sentence be postponed in order that defendant's counsel, who was then absent from the city, might address the court on defendant's behalf. The matter was again continued to July 6th, at which time defendant and his counsel, together with counsel for the state, appeared Before Judge Jones, defendant filing a motion for leave to withdraw his plea of guilty to count 1 and to substitute for that plea one of not guilty. Defendant filed his affidavit in support of his motion.

The court, at the close of the hearing, denied defendant's motion for leave to withdraw his plea of guilty, and July 7th, a written order was entered, formally embodying this ruling. July 6th, defendant gave oral notice of appeal from the ruling in open court and the same day served a written notice of appeal from the order. Another written notice of appeal was served and filed July 11th.

July 15th following, defendant and his counsel again appeared Before Judge Jones, and the court signed a judgment of guilty and sentenced defendant to confinement in the state penitentiary for not more than fifteen years. The state moved to dismiss counts 2 to 14, which motion was granted. Defendant in open court gave notice of appeal from the denial by the court of defendant's application to withdraw his plea of guilty. July 19th following, defendant gave written notice of appeal from the judgment and sentence, and from the written order dated July 7th, above referred to, denying defendant's motion to withdraw his plea of guilty and substitute therefor a plea of not guilty.

The order of the court denying defendant's motion to withdraw his plea of guilty was not an appealable order, but the case is Before us upon defendant's appeal from the judgment and sentence, which brings for review, with other matters, the order of July 7th.

Appellant assigns error upon the refusal of the trial court to certify the statement of facts in the form proposed by appellant, and complains of the certification of a supplemental statement of facts. Error is also assigned upon the denial of appellant's motion for leave to withdraw his plea of guilty to count 1, and substitute therefor a plea of not guilty; upon the entry of judgment of guilty and sentence July 15, 1938; and upon the refusal of the trial court to grant appellant a trial by a jury, as demanded by appellant in connection with his motion for leave to withdraw his plea of guilty.

Appellant moves to strike a portion of the statement of facts as certified by the trial judge. It appears that appellant filed and certified his proposed statement of facts, and that no amendments thereto were filed or suggested by counsel for the state. The trial court, however, on its own motion, prepared a supplement to the statement of facts, showing matters which had occurred Before the court in the course of the proceedings in the case, above set forth. Appellant moves to strike this protion of the statement of facts, contending that the matters shown are not evidence, within the meaning of the statute, Rem.Rev.Stat. § 388, requiring material evidence to be certified by the trial court, but were simply argument and colloquy between court and counsel. Colloquy between court and counsel may constitute important portions of the record in a case. In certifying a statement of facts, it is the trivilege and, indeed, the duty of the trial court to make the record as certified speak the truth and all the truth. If statements are included in a statement of facts which are not properly part thereof, they will, of course, be disregarded. The motion to strike the supplemental statement of facts is denied.

In support of his motion for leave to withdraw his plea of guilty to count 1 and to enter a plea of not guilty to that count, appellant filed his affidavit to the effect that the $2,000 which he had received from Ilma Kaler was paid to him for the purpose of purchasing certain securities; that affiant delivered the money to a person who was to procure the securities, Ilma Kaler knowing that the money was to be by appellant turned over to a third party; that this third party failed to procure the securities and kept the $2,000; that affiant had repaid to Ilma Kaler the entire $2,000 which he had received from her, and had satisfied all the other persons whose money he had received, as set forth in the other counts of the information; that two men, in addition to the party who received the money from affiant, knew of the payment by affiant to that party; that affiant, after much time and trouble, located these two men, and then asked to withdraw his plea of guilty, which request was granted, as above set forth; that these men could have appeared as witnesses on affiant's behalf May 12, 1938, but that they could not appear May 31st, for which day the cause was set for trial; that because he could not procure the attendance of these witnesses May 31st, affiant again pleaded guilty to count 1; that after the entry of this plea, affiant discovered the whereabouts of the party to whom he had delivered the $2,000, and that this person was willing to come to Seattle and testify on appellant's behalf; and that appellant had a good and meritorious defense to count 1 of the information and to all the other counts.

The record does not support appellant's statement that his trial was ever formally set for May 12th. As above set forth, the record shows that Judge Todd, who was not presiding judge, on April 8th granted appellant's motion to withdraw his plea of guilty to count 1, and set the trial for May 12th on all counts, 'subject to approval of date by presiding judge.' The only other record shown in the transcript is the action of the presiding judge under date April 23d, setting the trial for May 31st. It does not appear that the presiding judge was ever requested to confirm the tentative setting of the case by Judge Todd, or was even informed of the tentative setting of the case for trial. In his affidavit, affiant states that he knew of the setting of his case for May 31st the day after it was set for that date. It does not appear that appellant asked the court that the date of his trial be advanced to May 12th, or that he asked for any relief in the premises.

Appellant is an attorney at law of many years practice, and fully understands his rights. At all times he has had the advice and assistance of counsel.

Appellant earnestly contends that the trial court abused its discretion in denying his motion of July 6th for leave to withdraw his plea of guilty to count 1 and enter a plea of not guilty. Rem.Rev.Stat. § 2111, reads as follows: 'At any time Before judgment, the court may permit the plea of guilty to be withdrawn and other plea or pleas substituted.'

This section is permissive, and confers upon the superior court authority to permit the withdrawal of a plea of guilty. This section, then, vests the court with authority, in the exercise of its sound discretion, to permit a change of plea. The matter of the withdrawal of a plea once entered rests peculiarly within the discretion cretion of the court. A ruling made in the exercise of such discretion will not be reversed, save for manifest abuse.

In the case at bar, it appears that appellant's trial was greatly delayed. After his arrest, he promptly pleaded not guilty, the case was set for trial, then stricken from the docket ...