Ney v State

Ney v State
1931 OK CR 286
300 P. 417
51 Okl.Cr. 187
Decided: 06/12/1931
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Discretion of Court as to Permitting Withdrawal of Plea of Guilty in Misdemeanor Case.

Appeal from County Court, Caddo County; R.L. Lawrence, Judge.

Henry B. Ney was convicted of the possession of intoxicating liquor, and he appeals. Affirmed.

Morris & Wilhite, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DAVENPORT, P.J. An information was filed against the defendant, in the county court of Caddo county, on the 4th day of March, 1930, charging him with possession of intoxicating liquor, with the intent on the part of the defendant to barter, sell, give away, or otherwise dispose of the same. On a plea of guilty the court sentenced the defendant to serve 60 days in the county jail and pay a fine of $100. On March 24, 1930, an application to withdraw the plea of guilty was filed, overruled by the court, and the defendant excepted. Motion for new trial was filed, overruled, and exceptions saved.

The defendant in his application to withdraw his plea of guilty states in support of his application that this was

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his first offense, and that he was told and had reason to believe and did believe that, if he entered a plea of guilty, he would receive a sentence of 30 days and a fine of $50, and, relying upon said statements so made to him, he entered his plea of guilty. His application to withdraw his plea of guilty is not verified, and there is nothing in the record to show that any promises were made him as to what his sentence would be.

The defendant in his assignments of error alleges the court abused its discretion in overruling his motion to withdraw his plea of guilty; that the court erred in overruling his motion for a new trial; that the court erred in assessing the punishment against him; that said punishment so assessed is cruel, excessive, and unjust, and is not sustained by the facts.

The information on which the defendant entered his plea of guilty charges the defendant with the possession of two and one-half gallons of whisky, with intent on the part of the defendant to sell, barter, give away, or otherwise dispose of the same contrary to the statute. No testimony was taken, and the only facts the court had to guide it was the charge in the information, which was duly and regularly filed. An application to withdraw a plea of guilty is addressed to the sound discretion of the trial court, and a conviction based upon a plea of guilty will not be disturbed unless there appears a clear abuse of such discretion. Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Kemp v. State, 35 Okla. Cr. 128, 248 P. 1116; and Daugherty v. State, 51 Okla. 104, 299 P. 925.

The application of the defendant does not state sufficient grounds to warrant a reversal of this case. There

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