The opinion
Schroeder, J.,
dissenting: In my opinion the decision of the court overlooks the fact that this is a civil proceeding wherein the petitioner is required to prove the essential allegations of his motion to the satisfaction of the trial court only by a preponderance of the evidence. The trial court after considering all of the evidence presented by the record found in favor of the petitioner.
It has been held a general finding by a trial court raises a presumption that it found all facts necessary to sustain and support the judgment. (Andrews v. Hand, 190 Kan. 109 , 372 P. 2d 559 ; Dryden *489 v. Rogers, 181 Kan. 154 , 309 P. 2d 409 ; and Davis v. Davis, 162 Kan. 701 , 178 P. 2d 1015 .)
The first issue suggested by the petitioner’s motion to vacate the sentence was that the plea of guilty entered by him in the criminal case was not voluntarily made and free from coercion and misrepresentation.
The petitioner contended throughout that he was not guilty of the crime with which he was charged. Evidence both by the petitioner and his counsel at the criminal proceeding was sufficient to establish that the plea of guilty was coerced. Even if the petitioner’s proof with respect to promises made concerning use of the habitual criminal act failed, the evidence was sufficient to indicate that threats were made concerning the prosecution of the petitioner’s wife unless he entered a plea of guilty. This the trial court was entitled to believe constituted coercion at a time when the petitioner was not represented by counsel in the criminal proceeding. Counsel for the petitioner in the criminal proceeding acknowledged there was some discussion concerning the petitioner’s wife. All of the evidence on this point was demeanor evidence and this is a significant factor in adjudging credibility. (Townsend v. Sain, 372 U. S. 293 , 9 L. Ed. 2d 770 , 83 S. Ct. 745 [1963].) The court was well within its powers to find that such testimony of counsel corroborated the testimony of the petitioner.
The evidence is undisputed that the petitioner prior to his arraignment and plea in the criminal proceeding was- indigent and incarcerated for a period of approximately twelve days, facing a possible life sentence. During this time numerous negotiations with the county attorney’s office and its agents were held with the petitioner concerning the crimes with which he was charged and the punishment. All of these negotiations were without the aid and benefit of counsel for the petitioner. Furthermore, it is undisputed that the petitioner received the assistance of counsel for only a very short period of time before his arraignment, plea and sentencing.
Recent federal decisions, cited and discussed in the court’s opinion, indicate that the critical stage of a proceeding at which an indigent defendant is entitled to the aid and assistance of counsel is that stage of the proceedings at which the accused could be prejudiced.
No hard and fast rule can be stated which will apply to all cases. Ordinarily, under Kansas law, the preliminary hearing is not a critical stage of the criminal proceeding. But an appraisal of the *490 totality of the undisputed facts in this case, as established at the hearing on the motion to vacate, indicates a critical stage of the proceeding with respect to the petitioner occurred prior to the preliminary hearing. On the facts a shroud of suspicion is cast upon whether or not the concept of fundamental fairness has been contravened and whether the petitioner has been denied his constitutional rights.
On this point the trial court found and held in favor of the petitioner, and in my opinion correctly held that “The arraignment and preliminary hearing in the magistrate court” was a critical stage of the criminal proceeding in this case, and that an attorney should have been appointed for the petitioner prior thereto.
Had the petitioner not been an indigent person he certainly would have had the aid and assistance of counsel and would have been advised on the facts and the law prior to the negotiations of barter conducted by the county attorney’s office while the petitioner was incarcerated. The vice in the practice which permits the prosecution to bargain with the indigent accused is that it requires the accused to barter with the issue of his guilt or innocence. That is the vital issue in any criminal proceeding.
In Escobedo v. Illinois, 378 U. S. 478 , 12 L. Ed. 2d 977 , 84 S. Ct. 1758 (1964), Wigmore was quoted as follows:
“ ‘[A]nt/ system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer, — that is, to a confession of guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.’ 8 Wigmore, Evidence (Sd ed. 1940), 809. (Emphasis in original.)” (P--)
Throughout the record in the instant proceeding, it is apparent counsel for the petitioner in the criminal proceeding was not given a sufficient opportunity to fulfill his duty to his client. This is indicated by the following excerpts from the testimony of Mr. Loftus:
“Essentially, I was just the man to go through the formalities to dispense with the deal.”
*491 “We did not discuss his offense at all, because he was talking then about pleading guilty.”
“It was my understanding that he wanted to plead guilty and that all the preliminary negotiations had been made and that this was just the means to the end which was his plea of guilty.”
“I was just brought in at the last minute after the deal was made.”
“I did not have a chance to talk to the defendant so I could offer any argument to the Court in way of mitigation of the sentence. I did not know anything about the defendant’s background to tell the Court; for example, that two of these sentences were when he was very young and that type of thing.”
“The conversations that were had that particular day of my appointment consisted more in the punishment provision of the statute involved in forgery in the second degree as to which particular section of the habitual criminal act was going to be applied.”
“I remember feeling that this was all very rapid.”
The foregoing is not to say that counsel who did represent the petitioner at the criminal proceeding was incompetent. It does say the petitioner did not receive the aid and assistance of counsel to which he was entitled in the criminal proceeding prior to the arraignment and his entry of a plea of guilty.
The Kansas Supreme Court has held that a plea of guilty, in order to be valid, must be freely, knowingly and understandingly made. Otherwise it is a violation of the constitutional guarantee of due process and the judgment is void. (Miller v. Hudspeth, 164 Kan. 688, 705 , 192 P. 2d 147 , and authorities cited therein.) A coerced plea of guilty is not voluntary or freely made.
In 14 Am. Jur., Criminal Law, § 270, p. 951, it is said:
“A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance. Accordingly, it will not bind the defendant where it is entered through intimidation, however slight; and a judgment is not properly entered on it where the court does not satisfy itself of the voluntary character of the plea. . . .”
The effective assistance of counsel, in my opinion, requires that counsel for an indigent defendant in a criminal case have at least sufficient time to consult and counsel with the accused individually and in private for a sufficient period of time to adequately apprise him of his constitutional rights.
Court-appointed counsel must perform certain functions as reported in Miller v. Hudspeth, supra:
“. . . it is the duty of a defendant’s counsel to determine what crime the facts, in his opinion, establish and to advise his client accordingly. That is one of the definite purposes of having counsel. A layman is not presumed to know *492 the legal technicalities involved in a charge of murder or manslaughter in the various degrees. . . .” (pp. 705,706.)
The court there further stated that one of the most important reasons for requiring counsel is to protect the defendant from pleading guilty to a charge which the evidence does not establish.
In my opinion the lower court was correct in its order discharging the petitioner from imprisonment when it concluded and held “The defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court on June 28,1963.”
It is respectfully submitted the judgment of the lower court should be affirmed.