State v. Yates, 52 Kan. 566

State v. Yates

52 Kan. 566 | Kan. | 1894

The opinion of the court was delivered by

HortoN, C. J.:

The rule is, that where a defendant has pleaded guilty in a criminal case, and sentence has been passed upon him, it is within the sound discretion of the trial ■court to permit the plea to be withdrawn, and to allow a plea ■of not guilty to be entered. If the court abuses its discretion, error may be assigned therefor. (City of Salina v. Cooper, 45 Has. 12; 4 Am. & Eng. Encyc. of Law, 776, and cases cited.)

In this case, we do not think the trial court erred in the -exercise of its discretion. Before the plea of guilty was rendered, the defendant was represented by able counsel, and had full opportunity to consult with them. Two of his friends interviewed the county attorney for the purpose, prin*568cipally, of ascertaining whether the defendant could plead guilty and be fined only, thereby avoiding a jail sentence. One of the defendant’s friends understood from the county attorney, in his interview, that if the defendant pleaded guilty he would be fined $ 100 only, yet he admits that no definite promise was made. Upon cross-examination by the county attorney, this witness testified, among other things, that,

“ Q,ues. I did n’t urge upon you or these parties in talking-to you for them to enter a plea of any kind, did I? Ans. No, sir; not at all.

“Q,. If they did so, they did it with their own free will?' A. Certainly, all the way through.

“Q. About the talk of the hundred-dollar fine, I will ask you if that was n’t more specially in regard to what the fine-had been on previous occasions, rather than what it might be-in these cases? A. I think that was the understanding, that the fine would be $100, if they pleaded guilty.

“ Q,. I did not make the promise that they would receive a fine of $100, did I? A. You made no definite promise at all, Mr. Means.”

The county attorney had no conversation with the defendant personally. The defendant talked with his friends who had interviewed the county attorney, and it was his understanding from them (as well as their understanding) that if he pleaded guilty he would be fined $100 only, and have no jail sentence. It is not claimed that the plea of guilty was-entered because of anything said or done by the trial judge.

In order to assist the defendant to avoid a jail sentence, the-county attorney nolled the prior information, containing seven or eight counts for violation of § 386 of the crimes act, and filed a new information under § 395, permitting the court, in its discretion, to fine the defendant only, or imprison him in the county jail. Under the first information, upon a conviction or plea of guilty, a jail sentence was compulsory. The trial court had no discretion. Under the new information, the court had discretion, and exercised it favorably to the defendant. The real complaint is, that the sentence was for $300, instead of $100 only, as the defendant and his friends *569expected. If the defendant had or will yet pay the fine and costs adjudged against him, there will be no commitment.

We cannot perceive from a careful reading of the evidence that the county attorney acted in bad faith in any way toward the defendant; nor was the trial court under any duty to inflict the minimum sentence permitted by the statute by anything said or done by the county attorney. Under these circumstances, this court will not interfere.

The judgment of the district court will be affirmed.

All the Justices concurring.