
    No. 906
    McKAY v. STATE
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4913.
    Decided Nov. 19, 1923
    129. CRIMINAL LAW.
    Withdrawal allowed after sentence of plea of guilty of embezzlement, induced by promises of leniency, and proof of offset established.
    Attorneys! — T. J. Ross and O. D. Eshelman, Cleveland, for McKay; E. C. Stanton, Pros., Cleveland, ■ for State.
   VICKERY, J.

Epitomized Opinion

McKay was indicted for embezzling funds of Born Steel Range Co. He waived extradition from Missouri, pleaded guilty, and was sentenced to the penitentiary from eight to ten years. His motion to withdray his plea of guilty and interpose a plea of not guilty after his sentence, was overruled. The evidence disclosed that A. J. Harvey and his attorney, Mr. Keenan, went to St. Louis together with an assistant prosecutor and promised McKay leniency if he would come back to Ohio and plead guilty, that they would nolle the indictment against his wife and other indictments against him. It was further disclosed that the money which McKay was accused of embezzling probably belonged to a company which Harvey controlled and this company owed McKay money in excess of which McKay is accused of having embezzled. In reversing the judgment the Court of Appeals held:

1. “There are very grave doubts as to whether this mían was guilty of the crime of embezzlement or any other crime against the Born Steel Range Co. and there is a very serious question whether the Co. controlled by Harvey or Harvey himself could prosecute a claim against him by reason of the offset he would have against them, and so under the circumstances, he having pleaded guilty under and by virtue of the inducement, it would seem that it would be only just and right, that when the promises were not complied with, to permit him to withdraw his plea and enter a plea of not guilty.”  