Brief for Petitioner — Peek v. United States

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aa >" pen 28° 1947

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NELSON FOSTER ayp GEORGE E PAYNE,

Petitioners,

ie x: :

THE PEOPLE OF THE STATE OF ILLINOIS,

. - Respondent.

On Wait oy CERTIORARI TO THE iusienin Covsr or

.. THE Stave 6 or ILLmNots. min

"BRIEF FOR RESPONDENT.

| Meena gi

x i GEORGE F. BARRETT,

Attorney Geferal of the State of Ilinois,

208 South LaSalle St., Chicago 4, IL,

ie | baat : -. Attorney for Respondent:

Was C. Worms, if .

_ + Raymonp S. Sarwow, \.- — Aes

] James -C. Mummy, : ee

; Aatistanh Aitetnign Cnenaid; cts | Sao oy

Of Cowsel. * .

.“— INDEX.

i ark _ PAGE

Respondent’s Statement of the Case. ...... staeannne 1

The Facts Appearing on.the Record........ ec eee ——

~The ne hh CT eee POE PECL TE ree

Argument: © -

= | o

I. ~Federal due process does not imply a categorical

right to counsel in non-capital State cases. Spe-

cial cireumstances, such as a more than ordinarily

complex case or a less than ordinarily under-

standing accused, must exist in ordef to warrant

Even if due process required the appointment of

counsel in this case unless the accused chose to

dispense therewith, the case could not be reversed

on the egmmon law retord on writ of error. Other

remedies, original and not appellate in office and

nature, are’ available in Illinois for the assertion

of any rights that petitioners may have or claim.

' IIT. The record fails to show or to support a fair in-

ference that the prisoners had ‘‘special*need for

advice of counsel because of the difficult legal

questions involved’’ or were ‘‘unconstitutionally

ees CID GIN oe oan kn oc geen cseu dexgecns .

Conclusion ebanenaes Oc ne kesadackee th what Cakes 646

19.

Johnson v. Bee, BOE 0 SR oe vc ccc dedcccccs

- People v.

. Powell v. Alabama, 287 U. 8. 45.............. Niveeks

oo re ‘,..4,411, 15, 18

Constitution of the United States, Sixth Amendmént.

. Florida, Revised Statutes 1941, par. 909.21...... haercs

3 Cahill’s Illinois Revised Stats. 1933, Ch. 38, cs 65,

. Néw Jersey, Gilbert’s Cr. Code, 1927, Ch. 4, see. 308...

| cg

. » 'TaBLe oF CasEs. -

Adams v, United States, 347 U. S. 269..,... 4, 5, 15, 16, 18

Betts v. Brady, 316:U. S. 455... .....6...000005 g.. .4, 6, 16

Comins ©, Tew Tie, Ger Os Ge Be. oo ince cc cicscscs

. Garter v. Titinoia; 390.0. &. 178.....0:....2260.5: oe

Cundeif v. Nicholson, 107 Fed. 2d Pe Awiednsesccest

a ecmecigil Vv. Michigan, ne. , 67 8. Ct. 596... :

as Ue Rae RAE REECE ATRL evanadanuee ee re |e 12, 15

House v. Mayo, : 2:2 & 2A reper <6 see kee oe

Lutz v. a poe Ie ere ery

ogolowski, 317 Il. 460..... Terre er Tre er 15, 19°

Poonle ¥. Greet ae Bis Ba en nga ein ec sccecevees

Tomkins ‘v. Missouri, 323 U.S. 485...,...........5.

White v. Hagen, 324 U. 8. 760. ... 0. cic cecesdacce 14, 15

Woods v. Nierstheimer, 328 U.S. 211................

. zs Statutes CITep.

Constitution of the United States, Fifth Amendment. .

Constitution of the United States, Fourteesith Amend-

Alabama, Code of Ala. 1940, Title 15, Art. 2, par. 318..

Florida, General Stats. 1906, sec. 3969.............6.

SI oo ae eae kaw renaas ieeeet sete a.

Illinois Revised Stats. 1945, Ch. 38, par. 84..4%.......

Massachusetts, General Laws of Mass. 1932, ‘Ch. 277,

RE Og has os Oe eee a heen as os

oo ‘omplied Laws of Mich. 1929, Ch. III, see.

SER S65 40g OV EDS CEL CART ORRER MRE ET ERE SS ESS

Mississippi, Miss. Code, 1930, Ch. 21, see. 1262.......

North Carolina; Stats. 1943, Ch. 15, see. 15-4 ete ae

a - IN THE

Supreme Court of the United Ptates

Sata _ Ocroser Term, A. D. 1946. .

No. 540.

NELSON FOSTER axp GEORGE. PAYNE,

: Retitioners,

Ris v8. .

THE PEOPLE OF THE STATE OF ILLINOIS,

\ Respondent.

ee at

On Wait or CEerrTioraRI TO THE SUPREME CouRT OF

T ATE OF ILLINOIS.

ane 4 ir. ee

BRIEF FOR\ RESPONDENT.

RESPONDENT’S STATEMENT OF THE CASE.

Counsel whom this court has appointed for petitioners

has accurately stated the full substance of the record. —

However, being naturally and understandably anxious to

present his casein the aspect most favorable. to m¥n whese’

y 1s at stake and to whom he owes the highest Yéspon-

sibility, he has,’ by accent upon and emphasis of certain |

features of the record, cast his statement in a somewhat

tendentious form.

Focus of emphasis in stating facts is highly cotymend.

able in an advocate for an accused.‘ It should be fofPerne

as 2

ae ee

| 2 2 z ° A

. e. counsel for the state until the argument. We therefore

summarize the naked facts of the record in a form which |

is the more brief because petitioners’ statement is com-

Tey. plete in substance. : ()

‘ The Facts Appearing on tp Record.

ee Petitioners were charged by indictment with burglary

_of a dwelling house and petty larceny of property of the

value of five dollars in the cireuit court of Pulaski County,

Illinois, on February 22, 1935. The indictment was, as

counsel for petitioners points out, orthodox and therefore

technical in its verbiage. One of the burglary counts ac-

cused the defendants in substance of breaking and entering

without force while the other count charged them with

breaking and entering with force, both counts charging

criminal intent. ‘These counts em died alternative forms —

of the Illinois statutory charge of burglary (Ill. Rev. Stats.

1933, Ch.-38, par. 84). : °

On the same day, according to the record (R. 3-4), peti-

tioners were furnished with a copy of the indictment, a list

of the jurors and a list of the State’s witnesses, were ad-

vised of their “rights of Trial and of the consequences of

an entry of a plea of guilty” (R. 3), and, being arraigned,

pleaded of burglary and larceny as charged in the | >

indictment.’ : :

The record recites that thereupon each of said defend:

ants still ‘‘presist (sic) in such pleas of guilty’? (R. 3).

The court then found the ages of petitioner Foster tobe

34 years and oft petitioner Payne (alias Jpfferson) to be

48 years. . es

The judgment of the court was the statutory sen enke

fora period of not less than one year and whic

extend to life. — (Cahill’s TH. Rev: Stats. 1933, ChA3Ss,

° .

: A J ¢ ;

65. 1945, Ch. 38, par. 84.) At tthe time that the. sentence

De Nec sy the court had no discretion with respect ‘to

the Tainimum or maximum term that one convicted of felony

might serve in Illinois except in capital, cases, rape and

arson... (Cahil’s Ill. Rev. Stats., 1933,.Ch. 38, pars. 795-

796.) “WR,

The record is silent as to the matter of ccaneel.

- These, then, are the only facts in this case-explicitly pat-

‘ ent upon the record. All other statement as to ‘or discus-

sion of facts, either upon the part of counsel for the peti-

tioners or ourselves, is in the nature of inference, deduction

.or asserted presumption.

~~ ey

= The Questions Presented.

We do not conceive the questions. presented in the same

terms that petitioners’ counsel cogfeiVes thei. We deem

them to arise from the following considerations:

This court has held that upon an. affirmative showing of

prejudice, either appearing in the record or alleged in pro-

ceedings .contemplating and appropriate to a hearing of

evidence dehors the record, ‘due process is denied by a

“State court’s failure to appoint counsel even though the

case is non- a-capital, counsel is not requested, and a plea of

' As counsel for petitioners observes in the , oe of page 5 of his

hrief, petitioners asserted by extrajudicial very ery which ‘the.’

_ Yppended to the otherwise ® Properly authenticated record in the Supreme

Court of Illinois charges 1 effect that

they were told ty the beate's Attorney that they did riet need counsel and

would be sentenced merely to one year in the tiary. But petition-

‘ers’ counsel concedes that this was supported: by any f

appearing in the common law and the

this court's holding in Carter v. Illinois, 329 U.S, 173, that

not deny due in accordance with this court's "

St refuses to conside of matter dehors the record on writ of

error or other strictly late review. See, eg. Mathews v. United

‘States, 123 U. 8. 182; this court that on its writ of

error its review was to the ; and Claassen v. United

States, 142 U.S. 140, re court said, at page 147:

“Upon writ of error, no error in law cai? be reviewed by this court

which does not appear upon the record, or by bill of exceptions made

Js ee

a one

.¥¢

S. 786, and other cases cited wy. petitioners’ coun-

‘

Pa is received. Illinois*concedes this rule { Rice v. Olson,

sel )*

or.

But it has also held that absent a showing of prejudice, -

due process is not denied by the fact per sé of failureto -

appoint counsel, even though the plea is not guilty and :

counsel is requested, in a non-capital case (Betts v. Brady, °°

316 U. S. 455, ef, Adams v. United States, 317 U. S. 269).

And this is true even. in a capital.case where the right is

intelligently waived if prejudice, though charged, does not

appear upon the record. (Carter v. Illinois, 329 U. S. 173.)

Therefore the questions emerge: |

1. Does federal due process require ‘the appoint-’

ment of counsel before receiving pleas of guilty in all

‘ aie non-capital State cases where the punishment may ex-,

tend for rhany years or life unless the right.is waived,

f or must special circumstances, such as a more than

ordinarily complex ease or a less than ordinarily under-

standing defendant, be present in order to — the

ee of counsel? : :

ee special circumstances must be present in or-.

a to entitle one accused of a non-capital offense in

a State court to counsel, must the existence of su ch |

special circumstances be presumed where, as in this

-case, the record contains no explicit matter rebutting

such presumption, or may the stage remit accused

_ to such de novo proceedings as habeas corpus or coram

nobis for inquiry as to such circumstances?

-4%

ARGUMEN {eee

- . Ee

Oe gS ORE .

Federal due process does not implya categorical right to

counsel in non-capital State cases. Special circumstances, 2

such as a more than drdimarily lex case or a less

than ordinarily understanding accused, must exist in

order to warrant invocation of the Fourteenth Amend.

ment. *

In Adams v. United Siates, “317 U.S. 269, a gase cited.

and heavily relied upon bye — this court said at

. pages 276-277:

““* * * Legislation apart, no social policy ealls for

the adoption by the courts of an inexorable rule. that

guilt must be ‘determined only by trial and not by.

admission. A plea of guilt expresses’ the deféndant’s’

f that his acts were proscribed by law and that

cae «he cannot successfully be.defended..* * * And not

even now is it suggested that a layman cannot plead

guilty unless he has the opinion of a lawyer on the

questions of law that might-erise if he did not admit

his guilt. Plainly, the engrafting of such a require--

ment upon the Constitution would be a gratuitous

dislocation of the processes 9 aaa om (Em:

phasis supplied.) .

T he language above quoted is the more incisive because

in that case the specific guaranty of the right to counsel of .

the Sixth Amendment was invoked.

The. question :> Does FEDERAL DUE PROCESS carn

IMPLY THE RIGHT OF COUNSEL UPON ARRAIGNMENT IN NON-

‘CAPITAL STATE CRIMINAL CASES? must be considered in an |

historical, social and lg@al context that we discuss below.

’ The practice of receiving pleas of guilty without ten-

dering counsel was inveterate and very general through.

out the United States before the advent’ of the Fourteenth

6 pte.

Amendment. ‘(Betts ‘v. Brady, 316 U. S. 455.) It has ~

_ continued to be the general, indeed, to constituie the com-

» mon practice in at least half the states of the Union, since

the ‘adoption of that amendment. (See historical discus-

~< sion, post.) ‘Therefore, to the extent that consensus on

“the part of state courts is valid as a criterion for the con-

struction of .an amendment applicable only to the states,

any claim that the right to counsel in non-capital cases is

implicit in the notion of civilized sg must fail.

Counsel. associated with the writer of this brief have

prepared a ‘‘ Study of the Right to Counsel in State Crimt-

nal Cases,’’ which is annexed to this brief as Appendix

“thereof. (Post, page 20.) It amplifies and brings down

_ to date the similar study appended to this court’s opinion

in Betts v. Brady, 316 U. S. 455. :

This court’s study appended to its opinion in Betts v.

Brady and our own survey leave no doubt. of the following

historical and contemporary facts of criminal jurisprud-

f ence in state courts:

“ RIGHT TO COUNSEL IN STATE CRIMINAL casi:

.e- HISTORICAL. CONSIDERATIONS.

In the cases cited in the margin, courts of review in

3 twenty-four states have directly held that there is a Waiver

of the right to counsel where the accused fails to request

counsel.? Since a few courts do not seem to have passed

upon the question, it follows that a majority of states pass-

ing.on the question have adopted’ this view.

“«

2 ALABAMA: Mackreth Vv. Wilson, 31 Ala. App. 191, 15 So. (2d) 112,

Cert. den. 15 So. (2d) 114; CALIFORNIA: Pe v. Looney, 9 Cal. App.

(2d) 335, 49 P. (2d) 889; Davis v. Crowder, 78 P. (2d) 1039; FLORIDA

Weatherford ¥ State, 76 Fla. 219, 79 So. 680; GeonciA: Rowland v. State,

. 72 Ga. App. 793, 35 S. E. (2d) 372, 375; Gatlin v. State, 17 Ga. App. 406,

“way

878 E. 151; Gatlin v, State, 87 8. E. 151, 17 Ga. App. 406; IDAHO: Sfate — ~

. V. Athens (1922); 36 Ida. 224, 210 P. 133, 134; ILLINOIS: ‘People v.

Fuhs, 390 Ill. 41; People v. Corbett, 387 In. 41; People v. Lavendowski, -

326 Ill. 173; People v. Batey, 392 T1)..390;-People v. Parcora, 358 Ill. 448;

INDIANA: Loucks v. State, 213 Ind. 108, 11 N. E. (2d) 604; Iowa: Korf

Vv. Jasper Co. (1906), 132 Ia. 682, 108 N. W. 1031, 1082; KaNsas: Jones

‘ Vv. Amrine, 154 Kan. 629, 121 P. (2d) 263; Loftis v. Amrinme, 152 Kan.

464, 105 P. (2d) 800; Ollen v. Amrine, 127 P. (2d) 475, 155 Kan. 703;

KENTUCKY: Hamlin v. Commonwealth, 287 Ky. 22, 152 8. W. (2d) 287;

7 ¢

In the cases cited below, the cougts of six states have held

that there is a waiver: of : the right to counsel where the

“defendant pleads guilty to a ane offense and fails

to request counsel. .

Thus the courts of at least one- half of the states of - the

Union have not regarded the right to counsel, at least in

non-capitat cases where., there ‘is an acknowledgment. of’

- guilt in open court, as implicit in the concept of due proc-

ess of law.

‘The study also collates eubitatieebiniad and statutory pro-

visions defining, recognizing or touching the right to coun-

'sél. Most states have constitutional statutory provisions

guaranteeing in general terms the right to counsel. But

in Alabama the statute requires, appointment of counsel

Turner v. Commonwealth, 89 Ky. 78, 1S. W. 475; Grogan v: Common-

wealth, 222 Ky. .482, 1 S. W. (2d) 779; Holland v. Commonwealth, 455

S. W. (2d) 476, 241 Ky. 813; LOUISIANA: State v. Davis, 171 La. 449,

' 181 So. 295; State v. Murray (1928), 165 La. 653, 115 So: 813; State v.

. Sims, 42 So. 494, 117 La. 1035; MICHIGAN: People v. Fries, 294 Mich. 382,

293 N. W. 689; People v. Haddad, 306 Mich. 556, 11 N. W. (2d) 240, 241;

MISSISSIPPI: Dugan v. State, 151 Miss. 781, 119 So. 298; MISSOURI: State

Vv. Miller, 292 S. W. 440, 442; State v° Terry, 201 Mo. 697, 100 S. W.

432; MONTANA: State v. Fowler, 196 P. 992; NEBRASKA: ‘Alerander Vv.

; O'Grady, 137 Nebr. 645, 290 N. W. 718; Davis v. O’Grady, 137 Nebr.

708, 291 N. W. 82, 86; Ex-Parte Tail, 145 Nebr. 268, 16 N. W. (2d). 161,

162; NEVADA: State v: Mackinnon, 168 P. 330, 41 Nev. 182; NEW JERSEY:

State v. Murphy, 87 N. J. L. 515, 94 A.. 640; State v. ‘Raney, 63 N. J, L.

- 363, 43 A. 677; NEW YorK: People v. Price, 262 N. Y. 410;.187 N. E.

298, 300; PENNSYLVANIA: Commonwealth Vv. Smith, 344 Pa. 41, 24 Atl.

(2d) 1; Commonwealth v. Smith, 147 Pa. Super. 423, 24 Atl. (2d) 724;

Commonwealth v. Burke, 158 Pa. Super. 87, 43 Atl. (2d) 921; Common-

wealth v. Smith, 158 Pa. Super. 104, 43 A. (2d) 906; Commonwealth v.

Ashe, 141 Pa. Super. 408, 15 Ae. (2d) 408; Commonwealth ex rel. Piccerelli

Vv. Smith, 27 A. (2d) 484; SOUTH CAROLINA: State v. Jones, 172 S. C. 129.

173 8. E. 77;°TExas: Vv. State, 118 Tex. Cr. R. 582; 40 S. W. (2d) -

118; Brady v. State, 122 Tex. Cr. R..275, 54 S. W. (2d) 513, 514; Vir-

GINIA: Wilkinson v. Youell, 180 Va. 321, 238 E. (2d) 356, 359; Barnes V.

Commonwealth (1895), 92 Va. 794, 23 S. E. 784, 787; WEST VincINIA:

State v. Yoes (1910), 67 W. Va. 546, 547, 68 S. E. 181; WYOMING: James

v. State (1921), 27 Wyo. 378, 196 P. 1045.

: §Gponcia: Rowland v. State, 72 Ga. A _ 798, 35 8. E. (2d) +372, 375:

KANSAS: Jones V. Amrime, 154 Kan: 629, 121 P. (2d) 263; Loftis v.

Amrine, 152 Kan. 464, 105 P. (2d) 890; MICHIGAN: People v. Frica, 294

Mich. -_ 203 N. W. 689; NEBRASKA: Alexander V. O'Grady, 137 Nebr.

645, 200 N. W. 718; Davis v. O’Grady, 137 Nebr. 708, 201 N. W. 82, 86:

Ex Parte Tail, 145 Nebr. 268, 16 N. W~i2d) 161, 162; PENNSYLVANIA:

Commonwealth v. Ashe, 141 Pa. Super. 408, 15 A. (24) 409; Vimcinia:

Wilkinson v. Youell, 180 Va. 321, 238 S. E. (2d) 506, 300.

only“in capital cases. (Code of Ala. 1940, Title 15, Art. 2,

par.-318.) In Florida, although the right to appear ‘by

counsel is guaranteed (Fla. General Stats. 1906, sec. 3969),.

ap meng of counsel is required only in capital cases.

(Fla. Rev. Stats. 1941, par. 909.21.) In Massachusetts;

aus jurisprudence is often consulted as a repository of — |

legal and eonstitutional tradition and history. because of

that state’s colonial origin,-it waS provided as late as 1932,

_as°follows: :

“Ifa prisoner, under ‘itiniineast fora capital crime,

pleads guilty, upon being arraigned, the court. shall

award sentence against’: him; if, he does not plead ~

guilty, the court may assign him counsel and take all

other measures. preparatory to a trial, which ‘shall,

subject to Section 72, be held as soon after the finding

of the indictment after other official duties of the jus-

tices will admit and the circumstances of. the cases’

require.’ (General Laws of Mass. 1932, Ch. 271, ‘see.

47.) .

-In Mississippi, the.statute: > girliden that the right to ap-

vce pointed counsel as distinct from. the right to appear by

counsel’ if the defendant can himself obtain counsel, is

confined to-capital cases. (Miss. Code, 1930, Ch. 21, sec..

; 1262.)

It is: ‘perfectly true, as appears from the study that some,

‘states expressly provide for the appointment of counsel

-gn all felonie¢ and a few so provide even in. cases of mis-

demeanors. (Cf. Compiled Laws of. Michigan, 1929, Ch.

III, sec. 17129.) In New Jersey, a statute provides that

“ifthe defendant appears - for arraignment without coun-

sel, he must be asked if, he desires the aid af counsel, and

if he does the court must assign counsel.’’ (Gilbert's

“Cc riminal Code, 19270 h. 4, see. 308.) North Carolina by

statute guarantees | ‘counsel to ‘‘every person accused of

any ¢rime whatsoever.’” (N. C. Stats. 1943, Ch. -15, see.

15-4.) Other similar statuths will be found in the study. °

° 9 9

| But these datelory provisiina. dithough, evineing a ree.

ognition of the desirability of counsel in all criminal eases,

are, when read in.comparisoh with the statutes and deci-

“sions (cited above) in which at least half of the states of

the Union have held or enacted that the right is not absolute,

at least in non-capital cases, cannot be deemed declarations

of American. constitutional doctrine. ip they may be

read as at least suggesting that they were enacted, not as

confirmatory of antecedently existing constitutional rights,

_but.in recognition that there was no well understood con-

stitutional tradition mid counsel in all felony

cases in state courts.

The Circuit Court of poren for the Fourth Circuit

has directly held ‘that a plea of guilty to a: non-capital

offense raises a presumption of voluntary and competent

waiver of the right to counsel. Cundeff v. ce 107

Fed. (2d) 162. oe

This case cannot be reversed on the common law record.

alone, unless | tL.s court is prepared. to. hold that in every

_ serious criminal case, the trial court must appoint counsel

for the accused before receiving a plea of guilty or to

recite affirmatively a waiver of the right. Nothing in

the entire history of Anglo-Ameriéan ‘Jurisprudence even

suggests, much less requires, such a result. Neither

the Fi ifth, the Sixth nor the Fourteenth Amendments has

ever been construed by’ any court (insofar as patient

research has disclosed) as requiring categorically, abso-

lutely and mechanically, that no man may plead guilty —

to a non-capital crime, -ne matter what the circumstances,

without counsel: : .

Should this court commit itself to the declaration of such

a principle in the instant case, many thousands of prisoners

now inearcerated in state prisons upon pleas of guilty’

" < entered after the right to counsel was decliged would be set

v'.

i 10

at large. This result would, of course, not deter this court

from.such a declaration if it were convinced that the or-

ganic law of the United States could not otherwise be prop-

erly expounded.

But the’ practical i andl wuciicasa in by nearly ©

every nist prius court and many courts of review from ‘days

long antedating the Constitution until the present moment,

_ demonstrates conclusively and absolutely that such a hold-

ing would not serve-the understanding either of the fran

ers of the Constitution or 6f any of the many thousands of

jurists and constitutional ‘scholars who have perused and

applied its text in criminal cases. ;

And where the text of ‘the, Constitution has long —

construed by virtually unanimous consensus, an exegetical

reading. overriding that consensus is certainly not neces-

sary: and, we ron for important reasons “briefly noted

in the margin, is” $ not even appropriate.‘

This is, of course, not to say that if the record shows

4A question theoretically implicit in every problem of ‘eenstibetionns

‘ construction and ‘practically exigent in the instant case may be stated

by asking, When the meaning of the Constitution is sought, whose

understanding is to determine the “meaning”? Is it-the meaning of that

instrument to its authors, or to those who adopted the Constitution and

the several amendments that have been added thereto by voting in favor

thereof, or to academicians in the field of political philosophy, or to

lawyers generally, or to the hypothetical “reasonable man”? And if the

_ latter, then is it the probable meaning to the “reasonable man” of the

time of the adoption of the Constitution (or the amendment.in question,

as the case may be), or to the “reasonable man”: of todaw ?- Or is it

perchance a composite question of what ideas a “reasonable. man of

today” would ascribe to a putative “reasonable man’. reading the con-

_stitutional language at the time of its adoption?

While it is this court that decides questions of constitutional interpre-

tation, it does so upon the assumption that it is reading a document that

has been read by others whose ‘understanding of -its langu ~ is im-

portant. In short, this court must state its own understanding of a@

presumab “general” junderstanding of the constitution as a —

not of this court alone, but of the people. .

In the instant case, the court is confronted with a plea of guilty en-

red in a form and mode that ‘has been known to the common law for

Frturies Unanimous, or virtually unanimous, approbation of thé ac-

ptance of such pleas where counsel is offered and declined is, we

. submit, not merely relevant but conclusive on what the constitution

‘means in this connection fo those intrusted with supporting and enforc-

ing it. é

. that in a given case, the accused should: have. been tendered

“1 Os 1

counsel in order to prevent a miscarriage of justice, due

process would not be denied. This court. has held the

contrary. (See Point H, post, which is devoted to (1) a

discussion of the circumstances under which the appoint-

ment of vounsel is required in non-capital state cases and

(2) the appropriate mode of establishing those cireum-

‘stances, which we say is. not by presumption from a naked

common law record.) “!

Petitioners rely upon the following non-capital state

casess House v. Mayo, 324 U. S. 42; Rice vi Olson, 324

U.S. 786; De Meerleer v. Michigan, .... U.S. ...., 67

S. Ct. 596; Canizio v. New York, 327 U. S. 82.. Each one

of these cases was, under the governing state procedure,

a proceeding contemplating de novo investigation of matter

. dehors the-.common law retord. In each'one of these cases,

thé convicted prisoner alleged special circumstances s 1oW-

ing actual prejudice. In each one of these cases? a hearing

~?was-denied on the merits. + In each-one of these cases, this

court predicated its devision on the special circumstances,

allegedwin a proceeding in Which allegations of fact was

proper, ‘the allegations being undenieg and therefore ag ad-

initted. mer case the court said that the particular c

cumstances alleged were sufficient te show a denial of as

process. We summarize the special circumstances in each

case,: respectively, in the margin.®

ee © we

. 5 Rice v. Olson, 324 U. S. 786: In this ‘case petitiontr was an Indian —

and it was-made affirmatively to appear that there was an exceedingly

dificult question, ‘involving the reconciliation of conflicting rights‘ of

sovereignty with respect to whether the locus of the crime was within’

the. exclusive’ federal criminal jurisdiction. The court emphasized “the

7 lexities of the problem” and found it pertinent to observe that

ecision of the state court that it had jurisdiction “might not have

finally determined the issue.”

Canizio v. New-York, U. 8. 82: In this case the defendant was

nineteen years old, therefore presumed by. the common law to be in-

capable «f making even the simplest contract, and made an affirmative

showfhg. by affidavit, that he was “unfamiliar with his legal rights.”

Even then the court affirmed the conviction on the ground that counsel

who later represented him waived his right, if right he had, to vacate

the judgment. But in discussing what the situation would have been

Not one of these cases declares or, we submit, fairly

intimates that on a mere common law record, showing an

acknowledgment of guilt of a simple type of crime and not

suggesting that there was either special circumstance or

injustice in the receiving of such acknowledgment of guilt,

there is such a right of counsel that the State reviewing

court must ‘reverse for a new trial dn the issue of guilt or

this court will. °

_ We emphasize the words ‘‘ reverse for a new trial on. the

_ issue of guilt,’’ as distinguishing the issue from one as to

a hearing on the issue of whether the plea was understand-

“had there been nothing to contradict petitioner's general allegation that

he was not represented by counsel in the interim between his plea of

guilty and the time he was gentenced,” this court said only that “his

charge would have been such as to require the court to hold a hearing

on his motion.” The court did not hold that he was entitled to an

outright reversal upon the common law record. .

Tomkins Vv. Misgouri, 323 U. S. 485 and the com case, Williams

v. Kaiser, 323 U. 8. 471: In these cases, although offenses were both

capital, the petitioners made affirmative showings contemplating the

- hearing of evidence on the issués tendered by thpse allegations that they

were incapable of making a defense.

_ Adams Vv. United States, 317 U. 8. 269: The Circuit Court of A

issued an “auxiliary writ of habeas corpus” upon which writ ev ce

was taken dehors the record as to the competence of the accused to

‘waive the right of counsel.

‘Powell v. Alabama, 287 U. S. 45: The record affirmatively showed ~

‘and this court emphasized special circumstances consisting the fact

that the a-cused were negroes in a hostile white community, that there

was substantial doubt as to their guilt, and that they were forced to

trial without adequate preparation, as justifying reversal.

DeMeerleer vy. Michigan, ... U. 8. ..., 67 8. Ct. 506: The defendant

‘asserted his rights by a proceeding contemplating an investigation of

whether, in that particular case, due process was denied.

House Vv. Mayo, 324 U. S. 42: Here petitioner did not complain of

failure to appoint counsel but of unreasonable failure to consult with

counsel whom he already had. The court said: “We need not consider

whether the state would have been required to appoint counsel for

petitioner on the facts —— in the_petition.” And it said this notwith-

standing allegations of such “

tioner was brought into teurt “without previous warning” and informa-

the court for time to communicate and consult an attorney whom

stranger in the town.” In this

er was not represented by counsel

AR sos held that he was entitled u

o nial of due process. There is’ t

been entitled to an outright reversal upon the common law

ws . a

_ 13 |

. ingly made and whether special circumstances warrant the

vacation of the judgment, becatise on writ of -error in

Illinois, the judgment must be one of affirmance, vacation

of the judgment for trial, or discharge. Petitioners do not

and cannot suggest that they,cannot now obtain a hearing

on the issue of whether they were actually or probably

prejudiced on the particular facts of their case by simple

application to the Illinois court asserting facts constituting

or entailing prejudice. Their right to such a- hearing | is.

clear. (See Point II, post.) . oe

II,

Een if due process required the appointment of counsel -

in this case unless the accused chose to dispense there-'

with, the case could not be reversed on the common law

record on writ of error. Other remedies, original and not’

appellate in office and nature, are available in Illinois for

the assertion of any rights that petitioners-may have or

claim. - ne

- ‘Thus far neither this nor any. other court has declared |

that absent particular circumstances of special prejudice,

federal due process is denied by the mere failure to

furnish counsel in a non-capital state case. . Certainly no

court has ever so held in cases where a plea of: guilty was.

* received, (See Point I, ante, and the cages there cited.)

And even in capital cases, Where life itself is at stake, this

court has said that the accused may waive counsel if he

does so intelligently and understandingly.

In Johnson v. Zerbst, 304 vAs. 458, this court, speaking

through Mr. Justice Black, said, at pages 468-469:

a 8 Where a defendang, without counsel, ac-

quiysce® in a trial resulting in his conviction and. later

se(®s release by the extraordinary remedy of habeas

: . . sae a : ue ee

- .

corpus, the burden of proof rests ‘apon him to establish

that lie did not competently and intelligently waive his

constitutional right to assistance of counsel. * * *”’

Carter v. Illinois; 329°C. S. 173, was a capital case: It

yearie before the court on a common law record reciting

, that the court %.

quences of: such plea, including the right to have

‘fully explained to the defendant * * © the 4 .

lawyer appointed by the Court to defend him’”’ :

and the right of trial. The record in the instant case does

not, it is true, contain the verbiage, ‘*ineluding the rignt

8 to have: a lawyer appointed by the Court to defend him.’

But it does recite (R. 3) that the defendants

‘‘are advised of their rights of Trial and of the con-

sequences of an efitry of a plea of guilty ee oes

For aught that appears to. the contrary, the-efime was

a simple ene and the defendants freely acknowledged un-.

lawful entry with intent to commit: larceny, which are

the only two essential elements of the crim.

-Frue, we-have said only, “For aught . eis appears to

the contrary.’” But if the accused were actually preju-

diced, they have: in substance the same remedy that was

_ invoked in.each of the cases relied upon by their ‘counsel

as most nearly similar to the instant case, namely, applica-

tion to. the trial court upon charges of unfairness.

The Supreme Court of Illinois has specifically held that,

even in a misdemeanor case, where the absence or even the

mere inadequacy of counsel actually prejudices the f&c-

cused, coram nobis is appropriate. (People v. Green, 355

[11.'468.) This court has held that the Illinois Supreme

Court need not entertain the claim of betrayal by ap”

pointed counse] (White v. Ragen, 324 U.S. 760). or even the’

absence of counsel in a capital case (Carter v. Illinois, 329 | .

; ,

a ae § i: ; ‘\ ,

S al e

i : a af z . ‘

other than a simple acknowl

Sg ae . 15

U.S. 173) where there is an adequate remedy by statutory

proceedings in the nature of a writ of error ceram nobis,

And this court assumes that Illinois’ remedy imthat behalf

is adequate. (Woods v. N ierstheimer, 328 U.S. 211; White

v. Ragen, 324 U. S. 760; Lutz v. Ragen, ‘324 U.S. 760, a

companion case to White v. Ragen, id.)

Petitioners assert, althouglt only by extrajudicial interpo~

lations written upon but forming no part o/ the record, that |

they were induced to plead. guilty by a proniise on the part

of the State’s Attorney. If this is true, petitioners have

a-very clear right under Illinois law to move to vacate the

judgment against them. People v. Bogolowski, 317 Ill. 460,

.is directly in point. In’that case the accused, having been

promised leniency or immunity if he would plead guilty-and

testify against co-defendants, did plea@ guilty a lia

: testify against thefn. He received a severe sentence in

breach oi the promise of leniency. He then,made a mo--

. tion to vacate the judgment and sentence, ‘asserting his

understanding with the State’s Attorney. The Supreme

Court of Illinois held that promises made by the State’s

Attorney to induce a-confession and plea of guilty afforded

clear grounds for vacating the judgment upon simple mo-

tion in the. trial court. It reversed the trjaf court’s denial

of the motion. _ : | | |

If, therefore, petitioners’ pleasfof guilty were anything

gment of actual guilt of a

charge to which they had no Gefense, or if their pleas were

induced by false promises, or if the pleas were in fact due

toa misunderstanding of petitioners’ rights, they nay gy

~ 786), House (House v. Mayo, 32

U. S. 42), Beitberoet’

(De Meerleer v. Michigan, ...-@S. ..., 67S. Ct. 596) ant

MeCann (Adams v..U. S. ex rel, ‘Giie, 317 v.s S, 269).

namely, present a pimple: motion to the trial court cwengent-

precisely what was done by Rice pt v. Olson, 324 U.

‘

; ” \

7 ‘ | 16 | oo

ing facts and circumstances that demonstrate, or at least

raise a fair inference, of denial of due process.

Re ~ gee.

The record fails to show or to support a fair inference that

the prisoners had ‘‘spcsial need for advice of counsel ~

because of the difficult legal questions involved’’ or were ~

‘‘unconstitutionally rushed through trial.'’ = -

Petitioners’ counsel makes the charge, which would be

most serious if it were i by the record, that ‘* The

_petitioners were not advised of their right to counsel, did

not waive this right, and despite their special need for ;

advice of counsel ause of the difficult legal questions

involved, their conviction and sentencing were hurried

through without any assistance of counseh ( Petitioners’

Br., caption to Point I, p. 8.)

At page 12 of petitioners’ brief, their counsel summarizes

in a subcaption his contention that ‘petitioners were rushed

through trial on serious offenses without uetpecced for

reflection or consideration.’

- If this court rejects the considerations developed in

Point I of this brief, ante, retracts its declaration in Adams

' v. United States, 317 U.S. 269, that to hold that

' ‘‘a layman cannot plead guilty unless he has the

' opinion of a lawyer on the questions of law that might

arise if he did not admit his guilt’? would be ‘fa gra-

tuitous dislocation ¥f the processes of justice."’

overrules Betts v. Brady, ‘316 U.S. 455, rejects the tradi-

tions of state jurisprudence (Appendix), and halds that -

counsel must be appointed in all non-capital cases, even

those involving-only simple entry with intention to steal, ‘

then we concede that it makes no difference whether these

17°

particular petitioners did or did not lave, in their counsel's

language, ‘‘special need far advi ice of ‘counsel. sa

In short, if the court sets at naught tlie tradition of over

half the states of the Union and declares categorically that

-in all’serious crimes the accused must have counset before

’ entering a plea of guilty (unless the same is understand-

ingly waived), the facts recited in the particulat record ee

will be the details of a single case and irrelevant in the fac e

of such a genefal principle of constitutional law.

- But if this court adheres ‘to its view that the question

Of due process vel now in cases sugh as this depends upon

_ the particular circumstances of each case, then the follow-

ing observations upon the present record are important

and, we submit, decisive :

Petitioners were accused of the crime of burglary by an,

indictment orthodox in form. Therefore, the fact that the

text of the indictment was technical is not a special circum-

Stance. They were charged with a crime that is simple -

in its genus. It was, so far as the record discloses or

‘intimates, the simple crime of unlawfully entering the

dwelling house of one J. V. Shaver with intent to steal and

with actually stealing $5 belonging to Shaver.

They acknowledged their guilt of this crime in open

court by a simple plea of guilty. -

* Of course, we admit that a charge of burglary can iniidiee

very intricate, indeed highly, abstruse questions of law.

For instance,gne.entering a banking house in Illinois with.

intent to enter into a highly complicated financial transac-

tion might or might notebe guilty of burglary depending

upon whether the transaction, in all of its camplexities and

ramifications, would, if consummated, at

that Illinois deems felonious. Certai

counsel, even widely experienced and e

be necessary.

dite counsel, might

t toa crime.

y, in Such a case.

PNey

be established by de novo proceedings such as habeas cor-

7 48 |

"So, td, identification of the culprit in even a simple act-

of burgtiry might require difficult applications, of such

sciences as finger printing, the chirography of questioned

doeuments, or the ike: In any such cases such decisions

of this court as Rice v. Olson, 324 U. S. 786, are conclusive

that the reception of an accused’s plea of guilty (unless, .

perchanee, the aceused is more than ordinarily sophisti-

cated, cf. Adamsvy. United States, 317 U. S. 269), without.

appointing counsél, denies due process. . Tee

But, we repeat, thie cardinal questions in this’case ure,

as we stated at pages 2 and 3, ante, first, whether due proc-

ess requires the appointment of counsel in all: non-capital

state cases or oply in those in which ‘‘speeial circum-

stances’’ are. present; and second, if the latter, then

whether such ‘‘ special circumstances’’ , Upon a record silent

as to the-point, must be presumed to have existed or must

pus, coram nobis or other original nisi -prius proceedings.

If the historical view of the question is to prevail, then

we think it is decisive that at the time that the plea ‘was

received the trial court had no discretion to impose any °

sentence other than the one that, in fact it did impose.

Therefore, there Was not even authority, much less dvca-

sion, for a ‘‘trial.”’ The accused were, in substance, asked

whether they were gnilty of the offenses of breaking with

intent -to’ steal ind stealing, pleaded guilty to the charge

and received the only sentence posstble upon such a plea.

There was no occasion, either for delay or eo ei pto-

ceedings. / be Peat :

“Tf, as we contendand as this court hus always held,

‘* special skrounataieon”” are necessary. to require the ap-

pointment of counsel in non-capital cases simnle ive nus,

then certainly Illinois may determine whether the existence:

of such circumstances will be presumed upon a cominon law

@ ¢ "e

19 P

‘record or whethe? they must be shown either by a bill of

exceptions or, by evidence aliunde the record by such ap-

propriate arta readily “available state.pemedies as corant

nobis or the post, cgnviction mption made in the case of

People v. Bogolowski, already cited and dome, 317 Ill.

460. , Pima

, *~ Conclusion. odes!

For the reasons: deVelopéd in this brief, it is submitted

that the judgment of the Supieme Court of Illinois should

be affirmed. a |

Respectfully submittel,

Grorce F. Barrett,

, Attorney General of the State of Dlinois,

Attorney for Rdspondent.

. a

WituiaM C. WINEs,

Raymonp S. Sarnow, . ane

James C. Murray, ao

Assistant Attorneys General, m2

& :

Of Counsel. .

: »

‘= J

4 ‘

+ J

‘a

APPENDIX.

Srupy or THe Ricut to Counset ix State Crmmina Cases,

The following decisions hold or state that a failure to |

request counsel operates as a waiver of the right to counsel:

“AvaBaMA: Mackreth v: Wison, 31-Ala. App. 191,

15 So. (2d) 112, Cert. den. 15 So. (2d) 114; Cavirornia:

People v. Looney, 9 Cal. App. (2d) 335, 49 P. (2d) 889;

Davis v. Crowder, 78 P. (2d) 1039; FLoriwa: Weather- .

ford v. State, 76 Fla. 219, 79 So. 680; Georcia: Rowland

v. State, 72 Ga. App. 793, 35 S. E. .(2d) 372, 375;

Gatlin v. State, 17 Ga. App. 406, 878 E. 151; Gatlin v.

State, 87 S. E. 151, 17 Ga.. App. 406; IpaHo: State v.

Athens, (1922), 36 Ida. 224, 210 P. 133, 134; ILLiNors:

People v. Fuhs, 390 Ill. 41; Peoplé v. Corbett, 387 Ll.

41; People v. Lavendowski, 326 Ill.. 173; People v.

Batey, 392 Ill. 390; People v. Parcora, 358 Ill. 448;

Inpiana: Loucks v. State, 213 Ind. 108, 11 N. E. (2d)

694; Iowa: Korf v. Jasper Co. (1906); 132 Ia. 682, 108 ~

N. W. 1031, 1032; Kansas: Jones v. Amrine, 154 Kan.

629, 121 P. (2d) 263; Loftis v. Amrine, 152 Kan. 464, —

105 P. (2d) 890; Ollen v. Amrine, 127 P. (2d).475, 155 &

Kan. 703; Kentucky: Hamlin v. Commonwealth, 287

Ky. 22, 152 S. W. (2d) 297; Turner v. Commonwealth, +~

89 Ky. 78, 1 S. W. 475; Grogan v. Commonwealth, 222

Ky. 482, 1S. W. (2d) 779; Holland v. Commonwealth,

455 S. W. (2d) 476, 241:Ky. 813; Louisiana: State v.

Davis, 171 La. 449, 131 So. 295; State v. Murray (1928),

., 165 La. 653, 115 So. 813; State v. Sims, 42 So. 494, 117

~ La. 1035; Micuican: People v. Fries, 294 Mich. 382, 293

N. W. 689; People v. Haddad, 306 Mich. 556,11 N. W.

‘ (2d) 240, 241; Mississirrp1: Dugan v. State, 151 Miss.

781, 119 So. 298; Missourt: State v..Miler, ... Mo.

...; 292 S. W. 440, 442; State v. Terry, 201 Mo. 697,

100 S. W. 432; Montana: State v. Fowler, 196 P. 992;

Nepraska: Alexander v. O’Grady, 137.Nebr. 645, 290:

N. W: 718; Davis v. O’Grady, 137 Nebr. 708, 291 N. W.

82, 86; Ex Parte Tail, 145 Nebr. 268, 16 N. W. (2d)

ae 162; Nevapa: State v. Mackinnon, 168 P. 330,

LN. W. 82; New Jersey: State v. Mur hy, 87N. J. L. °

515, 94° A. 640; State v. Raney, 63 N. Zz

677; New York: People v. Price, 262 N. Y. 410, 187

298, 300; PENNSYLVANIA: Commonw ealth v. Smith, ry

Pa. 41, 24 Atl. (2d) 1; Commonwealth v. Smith, 147 Pa.

Super. 423, 24 Atl. -( 2d) 724; Commonwealth v: Burke,

158 Pa. Super. 87, 43 Atl. (2d) 921: Commonwealth v. -

Smith, 158 Pa. Su r. 104, 43°A. (3d) 906; Common-.,

wealth v. Ashe, 141 Pa. Super. 408, 15 A. (2d) Y ae ae Com-

monwealth ex "rel. Piccerelli v. Smith, 27 A. (2d) 484;- |

Sovrn Carotina: State v. Jones, 172 S. E. 129, iz

S. E. 77; Texas: Brown v. State, 118 Tex. Cr. R. 582,

40S. W. (2d) 118; Brady v. State, 122 Tex. Cr. R. 275,

04S. W. (2d) 513, 514; Virernia: "Wilkinson v. Youell,

180 Va. 321,- 238 E. (2d) 356, 359; Barnes vy. _Common- :

wealth (1895), 92 Va. 794, 23 S. E. 784, 787; WEstT

Vircinia: State v. Yoes (1910), 67 W. Va. 546, 547, 68

S. E. 18+; Wyomine: James v. State (1921), 27 bid i

378, 196 P. 1045. - :

° .

The following decisions hold that there is a waiver of

the right to counsel where the defendant pleads guilty to

a non-capital criminal case and fails to request counsel:.

Grorota: Rowland v. State, 72 Ga. App: 793, 35 S, E..

(2d) 372, 375; Kansas: Jones v. Amrine, 154 Kan. 629,

121 P. (2d) 263; Loftis v. Amrine, 152 Kan. 464, .

105 P. (2d) 890; y ICHIGAN: People v. Fries, 294 Mich.

382, 293 N. W. 689; Nepraska: Alexander v. O’Grady,

137 Nebr. 645, 290 NW: 718; Davis v. O’Grady, 137

Nebr. 708, 291'N.'W. 82, 86; Ex Parte Tail, 145. Nebr.

- 268, 16 N. W. (2d) 161, 162: Pexnsytvanta: Common.

-wealth ¢. Ashe, 141 Pa. Super. 408, 15 A. (2d) 409;

- Vincixia: Wilkinson v. - Youell, 180 Va: aie 3 S. E.

om 356, 359.

Li: 363, 43 A. an

y .

its .

- Constitutional and Statutory Provisions of the Various

Patan. States Relating to Right of Counsel. ,

2 .

' ALABAMA; ; a 7 i

Title 15, Section 318, Alabama Code 1940. Unless the |

prisoner is chatged with a capital offense, the court is not .

required to appoint counsel for him.

Code of Alabama 1940, Title 15, Paragraph 318 Artiele 2..

‘‘ Appointing coungel to defend. —-When counsel ap-

pointed for defendant in capital cases * * * if the

‘ defendant is ‘indicted for a capital offense, and is un-

able to employ counsel, the court must appoint counsel

for him, not exceeding two, ‘who must be allowed access

to him, if confined, at all reasonable hours.”’

‘This section requires only that . courts shall ‘appoint ,

- counsel for a defendant who is indicted for a capital

offense, and who is unable to employ counsel. This has

been the extent of the duty enjoined upon trial courts,

with respect to appointment of attorney for defendants,

since the earliest history of the state. Gilchrist v. State,

' 234 Ala. 73, 74, 173 So. 651. See Bethune v. State, 26 Ala.

App. 72, 153 So. 892.

Anwona:

Arizona Code Annctated 1939, Chapter 44, Section 44-904.

“Right to counsel on arraignment—duty ‘and priv-

lege of counsel—substitutions o .counsel—effect of .

failure to assign.—Before the deféndant is-arraigned |

on a charge of’felony if he is without counsel, the

court shall, unless the defendant objects, assign him

counsel, to represent him in the cause. Counsel so as-

- signed shall serve without cost to the defendant, and

shall have free.access to-the defendant, in private, at

all reasonable hours while acting as counsel for him.

‘Assignment of counsel shall not deprive the defendant

, of the right to engage other counsel at any stage of:

the proceedings in substitution of counsel assigned him

by the court. Failure to assign counsel before arraign-

-ment shall not affect the validity of any, proceeding in

the cause, if it appear that the defendint was subse-

‘quently represented py: counsel whether assigned

to him or of his own choosing and that the defendant

was not in fact prejudiced by such failure.’’

ARKANSAS:

| e -# |

Constitution, Art. IT, see. 11, provides that in all erimi-

nal prosecutions the accused has a right to be heard by

_ himself and counsel.

Pope’s Digest of the Statutes of Arkansas, Ch. 43; see.

3877, on the. assignment of counsel, provides: _

om any person about to be arraigned upon indict-

ment for.a felony be without counsel to conduct his

-- defense, and ‘shall be unable to employ any, it shall

be the duty of the court to assign him counsel at his

request, not exceeding two ** .°."

The Supreyne Court of Arkansas has refused to review

the contention of an accused that he was‘deprived of coun-.

sel when the record does not show that he requested the

.court to assign counsel nor any disinclination on the part

of the court to discharge its duty in that respect. Brown

vy. State, 12 Ark. 623.

This Section ‘partially supersedes Paragraph 44-905.

‘* Right of counsel—fees for services.—If the defend-

ant appeals for arraignment: without’counsel, he shall

be informed by the court that it is his right to have

counsel before being arraigned, and shall be asked if

he desires the aid of counsel; if he desires counsel and

declares upon examination by the. court, under oath,

that he has no means to employ the same, the court,

in its discretion, may assign one,(1) or more attorneys —

at law to that ity. "

Right to appear and defend by counsel, Const., Art! 2

‘Par. : 24.

CALIFORN IA:

’ Paragraph 987, Penal Code of California, ‘Deering 1941.

“Defendant on arraignment, to be informed of his

. right to counsel: When court to assign counsel. If the

, defendant appears for arraignment without counsel, he

* must be informed by the court that it is his right to

have counsel befgre being arraigned, and must be asked

if he desires the aid of counsel. If he desires and is

unable to employ counsel, the court must assign counsel

to defend him.”’

(Enacted 1872) Constitutional provisions: Const., Art. I,

_ Par. 13; . S. Const., Amdt. VI.

Paragraph 858. aera - ON

“ Magistrate to inform the " défthdont: of.the tharge, <.

and his right to counsel. When’ the defendant is

. brought before-the magistrate tpon an arrest, Whether

with.or, without warrant, on a charge of having com-

mitted a public offense, ‘the magistrate must immedi-

ately inform him of. the charge against him, and of his

ight to the aid .of counsel i in every stage of the pro-

ceedings. ’’

_@ ( Enacted 1872 ) ; ‘ . ; ‘ %

Paragraph 859. j

‘*Defendant to be. taken before magistrate of su-

perior court: delivery of copy of complaint and in-

formed of right to counsel officer to take message to

x counsel without delay or fee. When the defendant is

“charged with the commission of a publie offense, over

which the superior court has original jurisdiction, by

a written comp subscribed under oath and on -

file- in a court within the county in which the public

offense is triable, he shall, without unnecessary delay,

- be taken before a magistrate of the court in which

such complaint is on file. The magistrate shall immedi-

« ately deliver to him a copy of the complaint, inform

him of his right to the aid of counsel, ask him if he

desires the aid of counsel, and allow him a acrwgesncie ga

time to send for coufsel; and the magistrate must,

t Bie

e etter iat

« 9502.

upon the request-of the defendant, require a peace

officer to take a message to any counsel whom the

defendant may name, in'the city or township in which

the court’is situated. The officer must, without delay

and without fee, perform that duty.’’

(Kinacjaoe?: Am. Stats. 1927, p. 1044; Stats. 1935,

p. 492.) | |

Covorano: .

Colorado Statutes Atmofated, Chapter 48, Paragraph.

“‘On indictments or information for crimes or mis-

demeanors in any of the district courts of this state.

where by reason of the inability of the -deféndant or ~

defendants to employ counsel, the court may assign.

him or them counsel foryhis or their defense. It shall

be the-duty of the court so assigning counsel to allow —

. him a fee, to be fixed by the judge of the court, to be

paid ort of the county treasury of the county wherein

such indictment or information. may be found.”’

Note: The statute cited provides:“‘the court may assign

him counsel, ete.’’ and this: would seem to be directive

‘rather than mandatory. However, there are no Colorado

cases interpreting directly, the courts’ duty under the

_ the statute and the extent of its diseretion in refusing to

~ appoint ‘counsel.

~ + Coxsecticut: i

—“"- Art. IT, sec. 9, af the Connecticut Constitffion provides

that an accused: ‘‘shall have the right to be heard by him-

P ae and by counsel in criminal -prosecutions.”’

. Ch. 335, sec. 6476, General Statutes of Connecticut, Divi-

sion of 1930, provides for the appointment by the’ court: of

a public defender whose duty it is to act as an” attorney

. in defense of any defendant without funds sufficient to

employ — of his own choice.

;

/ @

o* es |

- .

. DELAWARE: i

4 Art. I, sec. 7, of the nbninse Constitution provides that ¢ |

‘‘in all criminal prosécutions the accused hath a right to.

be heard by himself and his counsel.” a. = ,

Revised Code of Dela. 1935, See. 4310, prdvides: 5 a

‘<@ © * the said court (the court of General Ses-

sions within the several counties) may assign counsel

to any person on trial for any offense which is a

felony.”

. es .

Constitution, Section 1]. Declaration of rights. .

“In all criminal prosecutions, the accused * * *

- shall be heard by himself or counsel or both * * *."*

General Statutes, 1906 Section 3969 ;. Florida Compiled , |

Laws, 1914.

“Tf any. person shall be indictéd for : a felony or a

misdemeanor or after an information shall be filed.

against him * * *, the court shall cause him to be

arraigned and tried at the same.term, unless

cause be shown for continuance and shall allow’ hin

counsel to assist him in his trial if jie desires it.”

“

Note: In Weatherford v. State, 79 So. 680 held:

‘failure of trial judge to agk accused if he desired

counsel or was unable to ——s counsel did not war-

rant reversal.’’ -

Florida Revised Statutes 1941, Paragraph 909.21.

‘Appointment of counsel in capital cases.—In all

capital cases where the defendant is insolvent, the

judge shall appoint ‘such cotnsel for the defendant as

he shall deem necessary, and shall ‘allow such com-

ong mage as he deem reasonable, such sum to be paid

y the county in which a was committed.”’

. 7

Georcua:

oP Park’s Annotated’ Code of 1914, Volume 6, Penal Code.

Para aph 8, Section 8. . —

‘*Benefit-of Counsel. Every person ine with 4 an

‘offense against the laws of this state * * * ”’ | Const.

Art. I, See. 1 Par. 5 (Sees. 6361, C. C.)

- Constitution :

‘**No person_shall be Saniead of the right to prose-

cute or defend his own cause in any of the courts of

this state in person, by attorney or both.’?’

Civil Code, Section 6360.

Note: In Gatlin v. State, 87 So. 151 held, not error when

court did not inform defendast of his constitutional right |

‘td Nave benefit of.counsel. ; :

InaHo:

Section 8621.. —e

* “Ina criminal act the defendant is entitled:

- 1. Toaspeedy and public trial.

2. To be allowed counsel as in civil action, or “toe

appear and — in person and with counsel.

State v. Athens, a0. Pac. 133 held:

‘*The fact, the defendant in a cuieieat case was sil .

represented by counsel on the arraignment is not

ground for setting aside an order continuing the case

for. the ferm. Defendant must request and be refused

the right to have counsel.”’

Idaho Code Annotated 1932.

Section 19-1412."

**Right to counsel. If, the defendant appears for. |

arraignment without counsel he must be informed by

the court that it is his right to have counsel before

being arraigned, and must be asked if he desires the

aid of counsel. If he desires and is unable’ to employ

wits the court must assign counsel to defend him.”

¥.

2 | |

Section 19-1413, | | | .

‘« Appointment of counsel for accused, Whenever; ;

upon the trial of a person, in the district court, upon

_ an information, or indictment, it appears to the Satis-.

» ‘faction of the court that the nccised | is poor and unable »

to procure the services of counsel, the court may ap-

point counsel to conduct the defense of the accused, '

for ‘which services such counsel must be paid out of the’

‘ * -eounty treasury, upon order of the judge of the-court, - ~

_ ‘such sum-as the court may deem reasonable for the

services rendered,”’

‘‘Action of court in: not advising defendant of °

his right to cougsel, or asking him if hé desired or was

not able to employ counsel,@but instead instantly

assigning him such and fixing date for plea on the

same day is not: compliance with terms of statute

which are mandatory.’’ .

State v. Poglianich, 43 Idaho 409, 252 Pac. 177.

< oy

ILLiNots: are -* ee

The rights to ap-aceused i in Illinois are — in the .

brief proper.

Pc)

INDIANA:

Louks v. State, 213 Ind. 108, 11 N. E. (2d) 694.

In this case, the court held that the test of whether or not °

defendant was deprived of right to counsel depends on

whether or not he entered his plea of guilty, ‘*freely and

‘ understandingly. iad

. In, Rhodes v. State, the Indiana court says:

* « This court has expressed disapproval of trial courts ;

receiving pleas of guilty from defendants charged with

serious crime, Who are not represented by counsel, un--

til after reasonable inquiry into the facts to discover

whether a plea of guilty is entered freely and under- —

= standing#y.’’ — 7 ! a fy

. ee a Da: ; ae

‘ | 29

Indiana, in our opinion, does not infer waiver froma plea_—

of guilty or, at least, there is no such necessary inference. ~

The court, wheii deciding whether waiver has been made,

examines carefully the _charge ®or indictment and sees-

whether the accused, as a person of ordinary intelligence,

_ -eouid comprehend-exactly what Acts he is charged with, ete.

*» Iowa: i ae ee ia ae a y

' Towa Code 1939, Chaper 640, hameiiade 13773:

\ . ‘Right to counsel. If the defendant appears for

arraignment without: coimsel, he must, befoge proceed-

ing therewith, be informed by the court of his right

. thereto, and. ‘be asked if he desires counsel; and if he

does, and is unable to employ any, the court ‘must allow

him to select or assign him counsel, not exceeding two,

who shall have free access to him at al] reasonable

_hours.’’!

Kansas: _ css 7 :

* The ases, Loftis v. Amrine, 152 Kan. 464, 105 Pa. (2d)

~ $90, and Jones v. Amrine, 154 Kan. 629,121 Pa.‘ (2d) 263

held that under the statutes then in force, the trial court was

not required to appoint counsel in non-capital cases in the

absence of a request by the accused.

General Statutes 1935, 62-1304 in Jones v. Hahies held,

accused who entered plea of guilty and made no‘request for

counsel was not denied right to counsel because trial court

‘did not advise him as to cireumstances under which he —

might have been entitled to have counsel assigned.

The statutes under which these cases were decided read: ;

as follows: General Statute 1935, 62-1304. ,

“If any pérson ‘about to be arraigned: upon an ifidicts

ment or information for felony be without counsel to

conduct .his defense, and be unable. to employ any, ,it

, shall be the duty of the court ‘16 assign him counsel ‘at

Sng

ae : ae aa

% - ; ; , ieee ;

his request, not exceeding two, who shall have free.

access to the prisgner at all reasonable hours.’’ —

This is not the Kansas law .at the present. time, as the

' 1935 statutes were-replaced in 1941 by the following statute.

General Statutes 1945, 62-1304. °

‘‘Counsel for accused; appointment, when; record

of proceeding; privilege and duties of counsel; fee paid

by county, when. If any person about to be arraigned

upon an indictment or information for any offensé

against the laws Of this state, be withgqut counsel to

conduct his defense, it shall be the duty of the court

to inform him that he is entitled to counsel, and to give

him an opportunity to employ counsel of his own

choosing, if he states that he is able and willing to do |

so. If he does ask to consult counsel of his own choos-

. ing, the court shall permit him to do so, if such counsel

is within the territorial juriMiction of the court.

he is not able and willing to employ counsel, and does

not ask to consult counsel of his own choosing, the

‘states in writing that he does not want counsel to repre-

sent him‘and the court shall find that the anpointment

of counsel over his objection will not be to his advan-

tage. A record of such proceeding shall be madé by

the court reporter, which shall be transcribed .and

reduced to writing by the reporter, whé shall certify

to the correctness of such transcript, and such tran-

script shall be filed and made a part of the files in‘the

cause.”’ ;

- The effect of this statute is net certain. See Garrison v.

Amrine, 126 P. (2d) 228. :

Ageused may waive right to counsel by written. instru-

ment. State v. Perkins, 156 K. 323, 325, 133 P. (2d) 160.

_ : .

IKKENTUCKY:

Bills of Rights, see. 11, of the Kentucky Constifation pro-

vides that ‘‘in all criminal prosecygions the acedsed has the *

right. to be heard by himself ar@l goupixel.”” —s-

° e .

4 ‘ .

e >

The Kentucky Supreme Court has held that a‘court need

not assign counsel to an accused under Kentucky law unless

he requests it and shows financial ability or lacks. ‘mental

capacity to understand or conduct a defense.- Holland v.

Commonwealth, 241 Ky. 813, 45 S. W. (2d) 476; Hamlin x.

~ Commonwealth, 287 Ky. 22, 1528. W. (2d) 297; Moore v.

. Commonwealth, 298 Ky. 14, 181-S. W. (2d) 297.

La. 449.

LOUISIANA: _ ». e

Article I, see. 9 of the Louisiana Constitution’ provides”

for the right to be heard in criminal prosecutions by

counsel,

Dart’s Criminal Stats., see. 602 provides:

‘*Every person shall be allowed to make his defense

- - by counsel learned in the law; and the court before

whom he shall be tried or some judge thereof, shall

immediately upon his request assign to “him such coun-

sel as he shall desire.”’

It- has been held that the Louisiana court need not ap- =

point counsel unless request is made. State v. Davis, 171

MAINE:

Declaration of. Rights, sec. 6, of the- Maine Constitution’

provides: ‘*In afl criminal prosecutions the accused shall

‘have a right to be heard by himself and his counsel or

either at his election.

“MaryLaNp: |

Declarations of Rights, Art. 21

tution, provides that in a cri

has a right ‘‘to be allowed nsel.”” - .

The federal distriet court, has held that when a defendant

pleaded guilty voluntarily and without improper induce-

of the Marvland -Consti-

ment insofar as Mary land law i is concerned, the accused has

" . waived the right to an appointment of counsel. Gall v. |

Brady, 39 Fegl. Supp: 504, #ff’d. 125 Fed. (2d) 253.

MASSACHUSETTS : >

General Laws of Massachusetts 1932, ‘nus 277, Sec-

tion 47 and 48. \

Section 47. f

‘‘Tf a prisoner, under indictment for a capital crime

pleads guilty, upon being arraigned, the court shall

. award sentence against him; if he does not plead

guilty, the court may assign him counsel and take all

other: measures , reparatony to a trial, which shall,

subject to Section 72, be held as soon after the finding

_ of the indictment after other official duties of the jus-

tices will admit and the circumstances of the cases

ee require.’

Section 48.

‘“‘If a defendant, in a capital case, does not plead .

guilty upon being’ arraigned before a district court or

trial justice, the superior court may assign him counsel

< upon his petition, and upon certification to the superior

~_court of the. record of the arraignment and plea by

“the clerk of the district court, or by the trial justice

before whom the arraignment was held. The case

shall, thereupon be continued until the assignment of

- * counsel has .been made and certification thereof: re-

ceived by the clerk of the district court or by the trial

juatice. Hie

a”

MICHIGAN: : af

Compiled -Laws Michigan -1929, Chapter IIT, Section

17129.

** Right of accused » hearing by counsel, defense se, cOn-

fronting witnesses. "Section 1. On the trial of every

indictment, or other criminal accusatign, the santy

accused shall be allowed to be heard by counsel ‘and

may defend himself, and he shall have a right to pro-

ducé witnessés and proofs in his favor, and meet the

witness who are produced against him face to face.’’

Constitution ‘IT, 19.

Compiled Laws of Michigan 1929, Chapter III, Section

17129.

-*‘Appointment of counsel for accused is discre-

tionary with court and one who pleads guilty is not

entitled to such appointment.”’

People v. Harris, 266 M 317, 253 N. W. 312.

Constitutional provisions securing to an accused right

to have assistance of counsel have been held not applicable

where one confesses to crime and pleads guilty without

requesting assistance of counsel. People v. Crandell, 270

Mich. 124, 258 N. W. 224.

MINNEsoTA: |

Minnesota Statutes 1945, Chapter 630, Section 630.10.

‘“* Defendant informed of his right to counsel. If the

defendant shall appear for arraignment without coun-

sel, he shall be informed by the court that it is his

‘ right to have counsel before being arraigned, and shall

be asked if he desires the aid of counsel.’’

The statute was not folloWed formally, but the courf sub-

stantially informed the defendant of his right to counsel.

State v. McDonnell, 165 M 425, 206 N. W. 952. =

MISSISSIPPI:

‘Code 1930 Annotated, Chapter 21, Section 1262.

2 “In capital cases, “copy of indictment and. special

pvenire served to be given—counsel permitted.—Any

‘person indicted for a capital crime shall, if lemanded

by him, by motion in writing, before the ‘completion of

the drawing of the’special venire, have a copy of the

indictment and list of special venire summoned for his

trial, delivered to him or his counsel, at least, one en-

= <<

tite day before said trial. And person in jail charged

with a direct capital crime, or who is indicted for such

crime, and who is unable to employ counsel, shall, at

his request, be allowed counsel not exceeding two, to

be ‘sworn by him by the judge in vacation or by ‘the?

court, to defend him in the circuit court, upon tbe trial

of such charge, and such counsel selected and appointed

by the judge or court’ shall have free access to the

prisoner, who shall have precess to compel the attend-

ance of witness in his favor.’’

_No duty to assign counsel in non- capital cases. Reed v.

State, 143 Miss. 686,‘109 S. 715. he

ei i

Montana:

. «Revised Codes of : a 1935 Annotated, (Sliaes 73,

Section 11886. ~

** Right “to counsel on arraignment If the defend-

ant appear for arraignment without counsel, he must

be informed by the court that it is his‘ right to have

counsel before being arraigned, and must be asked if.

he desires the aid of counsel. If he desires:and is un-

able to employ counsel, the court must assign counsel

to defend him.’’

See State v. Murphy, 68 M 427, 129): 219 P 629.

Missounr:

The trial court ¥ teapitta to assign counsel on request.

Missguri Rev. Stats. Anno., Section 4003.

NEBRASKA: ° as

Compiled Statutes of Nebraska 1929, Chapter 29, Article

18, | |

Section 29-1803. .

**Court to assign counsel for accused, wren, counsel -

fees audited and allowed by court, public defender.

e: k MS . 85. ; roe

The court before whom any persoh shall be indicted

for any offense which is capital, or punished by im-

prisonment in the penitentiary, is hereby authorized ,

~ and required to assign to such person counsel, not ex-

ceeding two, if the prisoner has not the ability to‘pro- .

cure counsel, and they shall have.full access to the

prisoner at all reasonable hours.”’ k

The constitutional right of* accused to Mai assistance

of counsel may be waived and a waiver may be implied

where the accused being without counsel fails to demand.

an-attorney to counsel him. Fx Parte Tail, 16 N. W. (2d)

"161. |

LJ ; fe e )

a ee aS Wahid talnie

* a | t oR es eo

sana: . BMm sherds

122 Pac. (2d) 862, Ex Parte Kramer.” ~~” . ;

New HAMPSHIRE:

Bill of Rights, Fifteenth, formibstes the right of an ac-

- eused to be heard ‘‘by-himself and counsel.”’

New Hainpshire Rev. Laws 1942, Ch. 428:

Cantal Cases, sec. 1, provides in substance, that counsel

to be assigned the accused by the court at his request if

accused is poor and unable to defray the expense of pro-

euring their attendance. ae 4

Other Cases, see.

“*Any person “heid ‘to the grand .jury charged with

any other offense the punishment whereof may be three

years’ imprisonment, is entitled to have counsel as- . .° ~

signed him by the court if the court shall be of the “Een

. -opinion that he is poor and unable to defra the ex-

\pense of procuring their attendance.”’ (Emphasis

‘added )

36°

Niiw JERSEY :

- Revised Statutes of New. ye 1937, Chapter 190,

Section 2 :190-3.

‘‘Counsel for accused; sing DRaitsin-ticeahelde cases.

» - The court before which any person tried upon indict-

ment shall, if he is not able to procure counsel, assign

to him ‘counsel, not exceeding two, who shall have

"Ete access to such prisoner at all reasonable hours.’’

7 New Mexico:.

Constitution, Art. II, sec. 14, asserts the right of an

accused to ‘‘appear and defend in person and by counsel.”’

New Mexico Statutes 1941, Crim. Procedure, sec. 42-1102,

provides that the court is authorized and required to assign

counsel to an accused charged with any offense which is,

capital or punishable by imprisonment in the penitentiary

if the accused has no means to procure counsel. No judicial

decisions clearly establishing the — to have counsel

assigned appear. ;

In State v. Garcia, 47 New -Mex: 319, 142° his (2) 552,

defendant without counsel entered a plea of guilty to mur- -

der in the second degree. Although it does not appear

whether accused came within-the purview of the statute

above, the court held that the defendant’s contention was

reduced to the proposition that an accised may not plead

guilty except upon advice of counsel. The court held there

was an intelligent waiver of the right.to counsel and due —

‘process was satisfied.

New. York:

Gilbert's Criminal Code 1927. Chapter IV, Section 308.

‘Defend wit appearing for arraignment without

counsel to ie informed of his right to counsel. If the

defendant appearing for arraignment without coun-

sel, he must be asked if he desires the aid of counsel,

and if he does the court must assign counsel. When

services are rendered by counsel in pursuance of such

assignment in a case where the offense charged in the

indictment is punishable by death or on an appeal from

a judgment of death, the court in which the defendant

is tried or the action of the indictment is otherwise

disposed of, or by which the appeal is finally deter-

mined, or the court in which an action is suspended or .

discontinued or otherwise disposed of on the ground

that the defendant has been heretofore or is hereafter

declared incompetent by a duly appointed commission,

may allow such counsel his personal and incidental

expenses upon a verified ‘statement thereof being filed

with the clerk of such court, and also reasonable com-

pensation for his services in such court; not exceed-

ing the sum of one thousand dollars.’

See People v. Youlio, 154.N. E. 588. Defendant was not

infornied of his right on arraignment and pleaded guilty.

Error disregarded. See People v. Price, 262 N. Y. 410, 187

N. E. 298. :

NortH CAarouina:

General Statutes of North Carolina 1943, Chapter 15,

Section ‘15-4.

‘‘ Accused entitled to counsel. — person accused

of any crime whatsoever, shall be entitled to counsel

in all matters which may ‘be necessary for his defense.

(Rev. S. 3150; Code, s 1182; R. €., ¢. 35, s 13; 1777,

e115, s 85; C. S. 4515. (1945 ‘Cumulative Supplement ).

Section 15-4. a

“*Accused entitled to counsel. Right is a mandate

_in capital felony cases. The right to have counsel as

well as the right of confrontation is guaranteed.’’

Article I,.Section 11, -N.-C. Const. Where the crime

charged is a capital felony, this right becomes a mandate.

State v. Farrell, 223 N. C. 321, sl 26 S. E.:(2d) 322.

38 5 7

NortH Dakota:

Constitution, Art. I, see. 13, phrases the right of an ac-

cused ‘‘to appear and defend in person and by counsel.”’

North Dakota Revised Code 1943, Judicial Criminal Pre

cedure, sec, 29.0127, provides:

. Mp all criminal actions, when. it is satisfactorily

shown to.the court that’ the defendant has no means |

and is unable to employ counsel, the court shall appoint

and assign courtsel for his defense. * * *”?

It does not appear that there. are any North Dakota cases —

interpreting expressly the court’s duty under the statute )

and the extent of its-discretion in appointing counsel.

Onto: St,

~ Page’s Annotated Ohio General Code: Sea cel 18, See-

tion 13439-2.

“« Assigning counsel to defend, After a copy of the

_ indictment has been served or opportunity had for

receiving it, as provided in the next preceding section,

the accused shall be brought into court, and if he is

without and unable to employ counsel, the court shall

_ assign him counsel, not exceeding two, whu shall have

access to such accused at+all reasonable hours.”’

OKLAHOMA:.

~The Oklahoma Constitution, . Art. II, see. 20, phrases the

right of an accused as that to be heard ‘*by himself and,

counsel.”’ :

Oklahoma Stats., Title 22, Ch. 7, see. 464:

‘If the defendant appear for arraizement, without

counsel, he must be informed by the court that it is his

right to have counsel before being arraigned and must.

be asked if he desire the aid of counsel: If-he desires,

and is unable to employ. counsel, the court must assign

counsel to defend him." : :

“ie

_ The Oklahoma: courts have held the above statute ap-

plicable to pase person accused of a felony. In Ex Parte

Barnett (1939), 67 Okla. Criminal Rep. 300, 94 P. (2) 18,

the Appellate-Court ordered the prisoner discharged under

this statute for failure of the trial] court to inform him

it was the court’s duty to appoint counsel if he had no

means. + |

However, the following eases of Ex Parte Robnett (1940),

69 Okla. Crim. Rep. 235, 101 P. (2) 645; and Ex Parte Pen-

nington (1941), 71 Okla, Crim. Rep. 263, 110 P. (2) 923,

hough the courts in thes@eases affirmed their right under

_ proper -¢onditions to discharge defendants, they remanded

them instead to the trial court to proceed as if there had

been no arraignment.

OREGON:

Constitution, Art. I, see. -11, phrases the right of an

accused to be heard **by himself and counsel.”’ :

Compiled Laws, Penal Code, sec. 26-803; provides that if.’

a defendant appear for arraignment without counsel he

must be informed by the court that it is his right to have

counsel before being arraigned and-must-be asked if he

desires the aid of counsel.

Section 26-804 provides, in substance, that whenever it

shall appear upon arraignment of a person accused of “e

crime against the State of Oregon that such person is with-

- out funds and unable to retain his or her own counsel, the —

court, upon request of the aecused, appoint suitable counsel.

That the court at the time of ‘arraignment inform he

accused of his right-to counsel guaranteed him by the laws.

‘of the state will be presumed on appeal where the judgment

is silent on such matters. An affirmative recitation that

there was compliance with the above statutes is not neces-

» . 40 . .

sary. It is presumed that the requirements were observed

by the court. Ex Parte. Loundagin (1929), 129 Ore. 652, 278

-P. 950. Of se

* >

PENNSYLVANIA: >

~ Commonwealth v. Valerio, 178 Atl. 509, 118° Pa. Super

34; Conviction without.informed of right to be represented

by counsel—held reversal by error. Commonwealth v.

Cohen, 186 Atl. 203, 123 Pa super 5. See also Common- -

wealth v. Haas, 141 Pa Superior 408, 15 Atl. (2d) 409, held

no duty to appoint counsel if pleaded guilty. .

Ruope Isianp:

Constitution, Art. I, see. 10, provides that in all criminal .

prosecutions an accused has the right to have assistance °

of counsel in his defense.

General Laws, Ch. 625, sec. 62:

‘‘The superior court may appoint, whenever occa-

sion may require, one or more attorneys to condnet

the defense of any indigent person charged ‘with any

’ offense against the laws of the State.’’

This statute is but permissive and the appointment of

counsel in ail cases rests in the sound discretion of the,

court. (State v. Hudson, 55 R. 1. 141, at 152.) “=

Sovrn Carouina:

. Laws of South Carolina, 1942, Code Crim. Proc. see. 980,

- provides that in capital offeuses: so 7 |

shall desire counsel the court is ,authorized and. re-

quired, immediately upon his request, to assign to such

person such, and so many. counsel not exceeding two

as the presiding judge shall designate, ° * °.”’

41 ee -

In State v. Jones, i72 S. C. 130, 173, S. E. 77, where

defendants were convicted of a non- capital offense, the

court held that the trial court was not required to assign Bi

eounsel for defendants not represented by attorneys. }

Soutn Dakota: fae 4

Vol. II, South Dakota Code af 1939, Ch. 35.29, sec.

_34.2905, provides that a defendant in a criminal action has

the right to’ defend in person. and by counsel.

Ch. 34.19, sees. 34.1901 and 34.1902, ecotle that an}

criminal court shall appoint counsel for a defendant. when

it is satisfactorily shown that the — is without

means to employ counsel.

Ch. 34.23, sec. 34.2302, requires that a trial judge fully

advises a person of his rights before permitting entry of .

a plea of guilty. .

In State v. Haas, 69 S. D. 204, in holding that a peti.

tioner who refused the aid of counsel and pleaded guilty

to a felony was entitled by the due process clause of the

Fourteenth Amendment to a hearing on the question of -

whether or not he had intelligently waived counsel upon a

showing by the defendant through his counsel that he was

without sufficient power of mind in understanding to make

an intelligent waiver of his rights, said with reference to |

the requirement of counsel by that state’s constitution:

‘*We do not now decidew hether the aid of counsel

to ane chatged with crime is of the essence. of due

process under otir State constitution. _We do decide

and hold that lack of such a fair trial, as the due

‘process provisions require, may arise from lack of

counsel that for such a waiver of the right to defend

yscounsel to be binding on a defendant it must be

“thade voluntarily and intelligently by a com, tent

“mind; and that proceedings in a capital case conducted

without the aid of counsel should be scrutinized with

the utmost of care. = :

= ‘y 42 eee

TENNESSEE: P | : oe :

Constitution, Art. I, sec. 9, provides that an accused has

a right to be heard by himself and-by his counsef*in all

criminal prosecutions.. e:

Williams Tenn. Code, see. 11734, provides: If the. ac? .

cused is unable to employ counsel he: inentitled to have

counsel appointed by the court.

Ky hg only case found dealing with the cot? ’s duty under

the Statute and the discretion in refusing to him appointed

counsel, is Kizer v. State, 80 enn. (12 L. Bi A.), 564, 566,

which holds that this right is subject to the control of the

courts in the exercise of a sound judicial. discretion.

‘ Texas: ao .

Constitution; Art. I, sec. 10, provides that the‘ acaused

‘*shall have the right of being heard by himself, or coun-

sel, or both.’’ :

Texas Code, Crim. Procedure 1925, Art 3, re 494,

provide: . ;

“When the accused is brought into court for: the

purpose of being arraigned, if it appear ‘that’ he has

no counsel and is too poor to employ counsel, the court

shall appoint one or more practicing attorneys to de-

‘ fend him.’

This statute applies only to capital ¢ases, and it is only

in casés of that charatter that the. court is required to

appointed counsel under it. Moreno vy. State (Crim. App.),

26S. W. (2d) 652. The court. may appoint. counsel jin

other cases as a matter of grace; the matter rests in the

court’s discretion and failure.or refusal to do so is not .

_ ground for reversal. Cummings v. State, 104 Crim. Rep.

117, 282 S. W. 227.

The statute is mandatery in captt }

to have counsel appointed under it may be waived by a

al, cases, but the right |

te “nigh arn an GO TB AE ne i

8 bee Xe .

failure to specifically requirest counsel. Compton v. State,

67 Crim. Rep. 15, 148 S. W. 581; State v. Jones, 172 S. W.

129, 173 S. W. 77. ;

Utan:

-- Constitution Art. I, sees. 7-13.

Utah Code, Criminal Proc. Titles -105-1-8, 105-22-12, pro-

_ &vides that if the defendarit appears for arraignment with-

out counsel* he must’ be informed by :the court that it is

his right to have counsel before being arraigned, and must

be asked whether he desires the aid of counsel. If he

_destres, but ‘is unable to.employ counsel, the court must.

“assign counsel to defend him. This applies i in capital a

non-capital cases alike. However, the accused ‘may ‘waive

_ this right by conduct and action at the time of his trial.

State v. Mewhinney, 43 U. 135, 134 P. 682; - State v. Aikers;

87 U. 507, 51 P. (2d) 1052. -

VERMONT? + |

Constitution, Ch. I, Art. 10.

General Laws, Ch. 101, see. 2327, provides that a person

accused has a right to be heard by himself and his eounsel. |

renee’ There are no Vermont cases interpreting directly the

} court! s duty under the statute and the extent of its dis-

“cretion in refusing to appoint counsel.

| However, jeneral Lasvs, Ch. 101, see. 2370, provides for

the compens tion of counsel assigned to defend-a respond-

ent in certain criminal cases. The court’s duties to assign

counsel are not set out under the provision or any other

prevision pertaining to the appointment of counsel for an

indigent ‘accused anywhere in the General Laws.

In the éase of State v. Gomez 289 Vt. 490, the. court, in

? ‘2 44

discussing an accused’s rights under section 2370, held that

under this section, the court within its discretion may re-

fuse to assign counsel if the court believes the defendant .

has means. © ;

ihe

There is no specific provision in the Virginia Constitu-

tion guaranteeing -the ‘person accused of crime the right to

have assistance of counsel. But the Virginia courts hold

that it-is a right guaranteed to a¢cused under their Bill of

Rights, sec. 8, Constitution of Virginia. Barnes y. Virginia,

92 Va. 794, 23'S. E. 784.

It i is the Virginia law that courts of record with criminal

jurisdiction possess the inherent power to appoint counsel

to defend paupers and other indigent persons charged with

crime. Watkins v. Commonwealth, 174 Va. 518. *.

_ A waiver ofthe right to counsel_is implied where the

accused appears without counsel and fails to request that

counsel be-appointed. Wilkinson v. Youelt, 180 Va. 321, 23 —

S. E, 4 _ 356. weeks

- WaSsHINGTON: Baa

Remington Revised Stats. of Washington, Criminal Code,

Title 18, Ch. 16, sec. 2095, provides:

/ ‘If the defendant appear without counsel he ‘shall

“he informed by the court that it is his right to have:

counsel before being-arraigned and he shall be asked

if he desire the aid of counsel, and‘if it appear .that

he is unable to employ counsel, by reason of poverty,

counsel shall be assigned him by the cvurt.’’

Section 2305 provides:

‘Whenever a defendant shall be arraigned upon the

request tTre court to appoint counsel to assist in his -

an ae

. defense and shall by his oath or such other proof as

my be required to satisfy the court that he is unable

by reason of poverty to procure counsel, the court shall

appoint counsel, not exceeding two, for such ar

ants, to be paid * ° °.’"'

The Washington courts have ‘upheld a coavietion of i

felony upon a plea of guilty made without the advice 6f

counsel where it did not affirmatively appear of record that :

. the defendant was advised of his right-to counsel. State v.

Schofield, 129 Wash. 295. |

West’ Vireinta

‘f‘onstitution, Art. III, see. 14, provides that in crim,

trials the accused ‘‘shall have the assistance of counsel.

-. The West Virginia courts have held that the right to

have counsel is a mere privilege guaranteed by.the Consti-

tution. If it differs in nature as well as in form from the

guaranty of a trial by jury, the latter is prohibitory in form,

while the other is permissive and conditional on the pleasure

_of the accused.’ No invasion of this guaranty is disclosed,

therefore, unless a request for the assistance of counsel

appears by the record‘ to have been denied by the court,

right to counsel may be -waived or renounced and it is not ~

denied by a mere failure to assign counsel. State v. Yoes,

67 W. Va. 546, citing People v. Schinger, 102 Ill. 241. @.’

WiIsCONSIN : 5 |

Wisconsin Constitution, Art. I, see. 7, guarantees the

right to counsel to an accused. z

Chapter 448, Laws of 1942, section 357.26, Stats. pro-

vides that a court may appoint counsel for an indigent

accused. Paragraph 2 of this statute provides:

—— pon-atraignment and before rain of oy person

a with a felony he shall be advised by this court

—

W YOMING:

’ : 46

of his right to counsel and a record shall be made of

such advice upon the minutes of: the court or in a.

transcript of the proceedings.’’

The Supreme Court of Wisconsin has held that even in

the face of such provisions of the Wisconsin statutes an °

accused is not: entitled to his release (in habeas corpus

based on the claim that ‘he was denied due process of law

because he was not advised of his right to coungel prior to

his plea of guilty as provided in the above cited statute. The

‘court held that the petitioner should aver the following

matters: (1) whether he knew he was entitled ta the benefit.

of counsel, and if so, why he did not request the court to

appoint counsel; (2) whether he made any effort to procure.

counsel and if he did not do so, the reason for his failure;

(3) whether he was gapable of making‘ his own defense;

. (4) whether he was denied the right to confer with persons

other than inmates of the place where he was s honfined ; and

(5) whether he knew the consequences of his plea of guilty.

State ex rel. Doxtater v. Murphy, 248 Wise. 593.

e. | a

€

Constitution, Art. I, sec. 10, provides that the” accused

shall be granted the right to counsel i in a criminal tase.

‘Wyoming Compiled Stats. 1945, Art. VIII, see. 10-805,

provides that if an accused be without counsel or-anable to

employ ariy, ‘‘it shall he the duty of the court to ) assign. ‘him

counsel at his request cai ein

The right or privilege to defend by counsel as guaranteed

by the Constitution, Art. I, see. 10, may be waived or re-

nounced and it is not denied by.a mere failure to assign

counsel, there beimg no invasion of it disclosed unless it

appears by the record that a request for. assignment of

counsel was ‘denied by the court. James xy. State, 27 Wyo.

378, 196 P. 1045.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.