State v. Wassinger

• Decision Date: 11 October 1930
• Docket Number: 29,427,29,426
• Citation: 291 P. 743,131 Kan. 316
• Parties: THE STATE OF KANSAS, Appellee, v. WILLIAM WASSINGER et al., Defendants; CELESTINE BIEKER, Appellant
• Court: Kansas Supreme Court

291 P. 743

131 Kan. 316

THE STATE OF KANSAS, Appellee, v. WILLIAM WASSINGER et al., Defendants; CELESTINE BIEKER, Appellant

Nos. 29,426, 29,427

Supreme Court of Kansas

October 11, 1930

Decided July, 1930.

Appeals from Finney district court; HARRY E. WALTER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW--Plea of Guilty--Right to Withdraw. Under the circumstances disclosed in the opinion, it was error to refuse to give permission to the defendant to withdraw his plea of guilty to a charge of grand larceny entered before an information was filed against him, where he made his motion for permission to withdraw his plea of guilty on the day following his plea and before an information was filed.

Edgar Foster, Horace J. Foster and Ray H. Calihan, all of Garden City, for the appellant.

William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, and A. M. Fleming, county attorney, for the appellee.

OPINION

MARSHALL, J.:

Here there are appeals in two actions, but there is only one abstract, and it appears to be confined to one of the actions. In each action defendant Bieker appeals from an order denying his motion asking that he be permitted to withdraw his plea of guilty to a charge of stealing cattle.

It can be gathered from the abstract that Bieker and several other persons were arrested, and charged in one complaint with stealing cattle. A preliminary examination was held on September 6, 1929, and Bieker testified at that hearing. On September 16, 1929, he entered his plea of guilty. No information was then on file against him, and none was filed until September 20, 1929. Bieker did not have an attorney present when he pleaded guilty. On September 17, 1929, the day after he entered his plea of guilty, Bieker filed his motion for leave to withdraw that plea. That motion alleged--

"(1) That the defendant was not represented by counsel; (2) that he did not fully understand the consequences of his act in so entering said plea; (3) that said plea was entered through and because of fear on the part of said defendant; (4) that said defendant is not in truth and fact guilty of the offense with which he is charged; (5) that said plea was made through the coercion and influence of the county attorney and sheriff of Finney county, Kansas."

Evidence was introduced on the hearing of the motion. There was evidence which tended to prove that the sheriff, after arresting Bieker, while on the way to Finney county, threatened to do violence to him, but promised him leniency if he would confess to the commission of the crime, and that he did not understand the consequences of his plea of guilty.

We quote from the testimony of Bieker, as given in the abstract, as follows:

"I finished school in the seventh grade. I have lived at Hays with my people. They are German people. I do not understand English very well. There has been a great many people talked with me about this case and what I was going to say--I mean the sheriff and Lee Richardson; they have talked to me. Some have threatened me and some have promised me great things. When I plead guilty here in court before the judge I did not know I was to go to prison. I thought I was going to be let go or taken away from here. I did not understand I was going to prison. I testified in the preliminary examination that whatever I did at that time I was awful drunk and whatever I did they made me do."

The evidence as abstracted tends to show that Bieker, who was twenty-three years old, was somewhat deficient in intelligence and understanding.

In State v. Yates, 52 Kan. 566, 35 P. 209, this court said:

"The rule is, that where a defendant has pleaded guilty in a criminal cause, and sentence has been passed upon him, it is within the sound discretion of the...