stating that the purpose of the right to counsel “is to give assurance against deprivation of life or liberty except strictly according to law” (internal quotation marks omitted)
How later courts described this case
- stating that the purpose of the right to counsel “is to give assurance against deprivation of life or liberty except strictly according to law” (internal quotation marks omitted)
- “Even the intelligent and educated layman has small and sometimes no skill in the science of law,” and, without the assistance of counsel, a defendant may lack “both the skill and knowledge adequately to prepare” a defense.
- estimated $300,000 cost to provide counsel for all prosecutions, including prosecutions for municipal offenses, called only a “modest fee” to insure due process
Written by the judges who cited it.
The opinion
PERRY, C.J.,
dissenting.
I am unable to agree with the conclusion reached by the majority in these cases.
It is clear from the majority opinion that they find no solid federal constitutional ground upon which to require the appointment of counsel in misdemeanor cases where the sentence imposed does not exceed six months and a fine of $500. As admitted, the Supreme Court of the United States has not imposed this obligation upon the states through the Fourteenth Amendment where the charge is a petty offense. Nor has the court by opinion required appointment of counsel upon the federal district courts.
It was only after the Congress of the United States acted to provide funds for counsel for indigent defendants that Rule 44 of the Federal Rules of Criminal Procedure was adopted to extend the right of .assigned counsel in petty offenses. The right.to assigned coun' *105 sel in the federal courts as to petty offenses rests, therefore, not upon federal constitutional rights, but upon public policy.
Article I, § 11 of the Constitution of the State of Oregon reads as follows:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the eoxmty in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital eases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by unanimous verdict, and not otherwise; provided further, that the existing laws and constitxitional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.”
It is clear from reading this constitutional provision that it treats of felonies which can be tried only in the circuit courts of this state and has no reference to courts of inferior jurisdiction, such as municipal courts or recorder’s courts, which are not courts of record and which often make no provision for trial by jury.
I agree that it may be good public policy to provide counsel for indigents where they are charged with *106 petty crimes, but since a constitutional right is not infringed upon, this court should not attempt by judicial fiat to determine the public policy of the state. That duty is imposed upon the people, not the courts.
The majority refer to Williams v. Oklahoma, 395 US 458 , 89 S Ct 1818 , 23 L ed2d 440 (1969), as some authority for the position taken. However, the Supreme Court of the State of Washington has accepted the views expressed in this dissent, holding that an indigent who may have an appeal from his conviction in the municipal court is not entitled to free counsel in the municipal court. Hendrix v. City of Seattle, 76 Wn 2d 142, 456 P2d 696 (1969).
Provisions for an appeal from the municipal court, which is not a court of record, to the circuit court is provided for each of the offenses charged. If it was here charged that the defendants were unable to appeal because of their indigency or were in anywise obstructed in attempting to appeal, then a constitutional question under Williams would be before this court. Such, however, are not the facts before us, and, therefore, the writ of habeas corpus should not be substituted for an appeal.
For the reasons above expressed, I would reverse.