Ralls v. State

HAWKINS, Presiding Judge. Conviction upon plea of guilty before the court of theft of an automobile, punishment two years in the penitentiary. The sole question is complaint because the court refused to permit appellant to withdraw his plea of guilty. Appellant filed an application for suspended sentence. Appellant waived a jury and entered his plea of guilty before the court after proper warning and caution to him by the court. All the formalities required under the provisions of the Act of the 42d Legislature, p. 65, Arts. 10a and 12 C. C. P., were complied with before the court accepted the plea of guilty, and the State introduced evidence which conclusively showed the guilt of appellant. The plea of guilty was entered on September 11, 1946. After hearing the evidence the court announced that he would find appellant guilty, but was undecided as to whether he would — 148 — suspend sentence, and requested and heard argument from counsel for appellant and for the State upon that issue, and then announced that he would take that issue under consideration. Later in the term of court, about October 22, the court announced to attorneys for the State and appellant that he had concluded not to suspend the sentence, whereupon oral request for leave to withdraw the plea of guilty was presented, and later by leave of the court, reduced to writing. The bill of exception bringing the question forward was, without objection, qualified by the court, which qualification is as follows: “The defendant waived a jury and plead guilty to the indictment before the Court and the case was fully developed, as shown by the Statement of Facts on file herein. “At the' close of the testimony the Court informed the defendant that he had plead guilty and he had heard the evidence and he was of the opinion that he was guilty and that he would find him guilty. (The court further stated that he was not satisfied as to the question of whether he would or would not suspend the sentence of the defendant and asked for argument. The defense attorney made an argument and the Court asked the District Attorney to make a statement,, which the District Attorney did, after which the Court stated that he was going to send the defendant back to jail to determine in his mind whether he would or would not suspend the sentence, stating if he did not suspend the sentence he would give the defendant credit for the time spent in jail so he would not lose anything by reason of said fact.) “Sometime later the Court indicated to the District Attorney and to the Attorney for the defendant that he was not going to suspend the sentence of the defendant, at which time the attorney for the defendant stated to the Court that if the Court felt that way about it that he would take the responsibiliy away from the Court and bring the defendant in and let him plead guilty before a jury and let them determine the issue. The Court told him that that would be like child’s play to spend a half day trying the case and then because the defendant was dissatisfied with the verdict to go back and spend another half day in a trial before a jury, at . which time the attorney for the defendant asked the Court to wait before sentencing the defendant and give him time to file an application to withdraw the case from the Court and to have a jury, which the Court — 149 — did. The defendant filed his motion at a later date and the same was overruled, as shown by the bill of exception herein.” Where a plea of guilty is entered before a jury the rule is well established that the plea may be withdrawn and a plea of not guilty entered at any time before the jury retires to consider of its verdict. This is the first time the question has been before this court since the law was amended permitting the waiver of a jury and pleas of guilty in certain felony cases to be made before the court. In such case the judge takes the place of the jury and when the formalities have been complied with, the evidence heard, and the judge takes the case under advisement it is very similar to the retirement of the jury to consider its verdict. In the present case, however, the judge announced that he found appellant guilty; that was his judgment on that phase of the case, and he only took under advisement whether to suspend the sentence. The judgment of the court was his announcement of what he had decided to do, the entry of same in the records of the court was evidence of the judgment. We are much impressed with the statement made by the court to counsel for appellant that to permit the withdrawal of the plea of guilty “would be like child’s play to spend a half day trying the case and then because the defendant was dissatisfied with the verdict, to go back and spend another half day in a trial before a jury.” We conclude that the trial court committed no error in declining to permit the withdrawal of the plea of guilty under the circumstances here present. The judgment is affirmed.