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agricultural county, presumably by a jury composed in part of farmers. Their speeches had been principally addressed to farmers. Their printed matter was circulated among them. When the jury was impaneled, they announced that they were satisfied with its membership. Their counsel was diligent and earnest in their defense.

It is our conclusion, after a thorough examination of the record, that their guilt was clearly established,

and that none of the errors of law of which they complain resulted in their being deprived of any of their substantial rights. Their conviction is, therefore, sustained, and the order denying a new trial affirmed.

Petition for rehearing denied.

Writ of certiorari denied by the Supreme Court of the United States, October 24, 1921 (U. S. Adv. Ops. 1921-22, p. 64) - U. S. —, 66 L. ed. -, 42 Sup. Ct. Rep.-.

ANNOTATION.

Right of defendant in criminal case to conduct defense in person.

I. Scope of note, 266.

II. Right to conduct entire defense with

out assistance of counsel, 266. III. Right to address jury when assisted by counsel, 271.

1. Scope of note.

This annotation, in discussing the right of the defendant in a criminal case to conduct his own defense, does not treat broadly of the constitutional guaranty of the assistance of counsel, but considers that guaranty only as it affects the right of the accused at his option to conduct his own case. Accordingly, those cases are excluded wherein the accused waived the right to counsel but it does not appear that he did anything in his own defense.

II. Right to conduct entire defense without assistance of counsel.

It is universally held that a defendant in a criminal case who is sui juris and mentally competent may conduct his defense in person without the assistance of counsel.

California.

People v. Russell (1909) 156 Cal. 450, 105 Pac. 416; People v. Rose (1919) Cal App.

Pac. 874.

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183

Florida.-Cutts v. State (1907) 54 Fla. 21, 45 So. 491; Weatherford v. State (1918) 76 Fla. 219, 79 So. 680. Georgia.-Gatlin v. State (1915) 17 Ga. App. 406, 87 S. E. 151.

Louisiana.-State v. Kelly (1873) 25 La. Ann. 381; State v. De Serrant (1881) 33 La. Ann. 979; State v. Perry

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(1896) 48 La. Ann. 651, 19 So. 684; State v. Fulco (1916) 138 La. 995, 71 So. 134.

Massachusetts.-See Com. v. McConnell (1895) 162 Mass. 499, 39 N. E. 107.

Missouri.-State v. Terry (1907) 201 Mo. 697, 100 S. W. 432.

New Jersey.-State v. Raney (1899) 63 N. J. L. 363, 43 Atl. 677. Texas.-Compton v. State (1912) 67 Tex. Crim. Rep. 15, 148 S. W. 580. West Virginia. State V. Yoes (1910) 67 W. Va. 546, 140 Am. St. Rep. 978, 68 S. E. 181.

Wisconsin.-Dietz v. State (1912) 149 Wis. 462, 136 N. W. 166, Ann. Cas. 1913C, 732.

The argument ordinarily made against the rule as stated seems to be that a legal trial of a person charged with a public offense cannot be had, unless, at such trial, the accused has the assistance of an attorney at law in his defense, in view of the constitutional guaranty that in a criminal prosecution, in any court, the person accused shall have the benefit of counsel and the right to defend in person or by counsel, or both. "But, obviously," said the court in People v. Rose (Cal.) supra, "this is not so. That provision of the Constitution, in so far as it relates to the right of an accused to be represented at his trial by counsel, only declares and guarantees that right, and does and can do no more than that; for it still remains

with the accused to determine for himself whether he will exercise the right, and so be attended at his trial and defended therein by counsel. Of course, if he desires to be so represented and assisted in his defense by counsel, there cannot be a denial to him of that right, even though he be without the necessary means to employ and compensate the attorney. If, on the other hand, he does not desire an attorney to assist him in his defense, there is no law which can compel him either to employ one for that purpose, or to accept the services of one assigned to him by the court, should the court adopt that course. In this case the defendant, upon being arraigned upon the information, was asked by the court if he had or wanted counsel to conduct his defense, and he replied that he would himself attend to that matter. It does not appear that he thereafter asked or requested the court to appoint an attorney to defend him, and he appeared at the trial without an attorney, announced himself ready when the case was called for trial, and himself managed and presented at the trial his own defense. If, therefore, he thinks he now has reason to believe that he suffered by reason of having no lawyer to assist him in his defense, he, and not the court or the law, is to blame. He testified that he was a professional court interpreter, and from this fact we may assume that he is a man of intelligence, and had, from his experience as such an interpreter, become more or less familiar with the general rights of an accused on trial in the courts, and with the methods of conducting jury trials. We can, therefore, see no ground for excusing his neglect to secure, either by employment, or by appointment by the court if he was unable to pay for the services of one, a lawyer to represent him at the trial and conduct his defense. It certainly, under the circumstances of this case, cannot be held a ground for a reversal of the cause, because the defendant, for reasons best known to himself, elected to waive the assistance of a lawyer, and to manage his own defense. It may be added, in this

connection, that the defendant appeared to understand the situation presented at the trial remarkably well, for he seems to have cross-examined the witnesses testifying against him with no little degree of cleverness. Moreover, we can justly say that the case was tried by the court fairly and impartially, and with a just recognition of the rights of the accused." To the same effect, see State v. Raney (N. J.) supra.

In the leading case of Dietz v. State (1912) 149 Wis. 462, 136 N. W. 166, Ann. Cas. 1913C, 732, at the opening of the trial, in response to inquiries by the trial judge, the defendant stated to the court that he preferred and intended to try the case without an attorney. The trial resulted in a verdict of guilty, and a new trial was sought on the ground that the accused was an unlettered man, who had no knowledge of the law, had never tried a case, and should not have been allowed to defend himself against a prosecution for murder. The court said: "A critical examination of the record must also impress one with the fact that the plaintiff in error was by no means a stranger to courts or their proceedings. From the beginning to the end of the case it appears that he made objections to the admissibility of evidence offered, and to the form of questions, in language clearly showing an accurate perception of the reason for the objection, which, in some instances, could hardly have been improved by an accomplished lawyer. He made due and timely objection to all the testimony tending to prove previous resistance to officers.

Without going further, it is sufficient to say that it appears that Mr. Dietz, from beginning to end of the testimony, was very active in the assertion of his real or supposed rights, and made objection in due season to practically all of the testimony the admissibility of which could be said to be in substantial doubt. So far as matters of real substance are concerned, it is not perceived how the most astute counsel could have materially aided him by way of objections to the admissibility of evidence. Nor is it by

any means certain that a lawyer could have helped him at all in the argument of the case. Mr. Dietz addressed the jury in his own behalf evidently with fluency and force, for it appears that he was frequently interrupted by counsel for the state for the reason that he was traveling outside of the record. An argument of this nature by a man whose liberty is hanging in the balance may well appeal to an American jury with greater force than the argument of a skilful lawyer. This, however, is not the question. We have referred to these matters simply to show that the defendants were not incompetents or innocents, who sat mutely in court and allowed the prosecuting attorney to do as they chose, but rather that they managed their case with a shrewdness and knowledge of their substantial rights which was not only surprising, but which may well have been fully as effective as if the defense had been conducted by an attorney. Every person sui juris, who is charged with crime, has the right to try his own case if he so desires. The Constitution guarantees him the right to be heard 'by himself' as well as by counsel. . . . The trial court would not have been justified in imposing counsel upon the defendant against his will, unless indeed it appeared that he was mentally incompetent, or not sui juris at the time of the trial. We see nothing substantial to justify any such idea. Evidently the trial judge, whose ability, honesty, and earnest desire to safeguard the defendant's rights are not open to question, saw nothing indicating such mental incompetency or insanity. Had he seen that there was even a probability that such a condition existed, it would have been his duty, at any stage of the trial, to halt the proceedings and make an inquisition of the question."

Likewise, in Gatlin v. State (1915) 17 Ga. App. 406, 87 S. E. 151, on the call of the case the court asked the defendant if he was ready for trial, and he replied in the affirmative, and proceeded to defend himself, acting as his own counsel. The record showed that he cross-examined the witnesses

with at least ordinary ability and intelligence, and succeeded in eliciting from them testimony favorable to his cause. It was held that the defendant was not deprived of his constitutional right to have the benefit of counsel. The court said: "The right and privilege of one accused of crime to be defended by counsel is not denied by a mere failure of the court to assign counsel, when it does not appear that counsel is wanted. If the accused has means to employ counsel, and is out upon bond, and has opportunity to secure counsel, and neglects or refuses to do so, the court is under no obligation or duty to appoint counsel to represent him. Where the defendant, as in this case, in answer to a query from the court, states that he has no counsel, and, in answer to another question from the court, replies that he is ready for trial, and makes no request for counsel to be appointed to defend him, but, on the contrary, actively enters into the case as his own lawyer, agreeing upon a jury, cross-examining the witnesses, and making his own statement to the jury, he waives his right to be represented by counsel. . . A constitutional right, like any other right, may be waived; and while the constitutional right to have the benefit of counsel is a valuable and sacred one, and one that should never be denied or abridged, it is not a compulsory right; or, to put it in plain and simple words, if the defendant does not desire the assistance of counsel, but prefers to act as his own lawyer, he has that right also. The Constitution of this state provides that 'no person shall be deprived of the right to prosecute his own cause in any of the courts of this state, in person, by attorney, or both.' Civ. Code, § 6360. It is not shown in this case that the defendant desired the services of an attorney, but, on the contrary, it appears, at least inferentially, that he was satisfied to defend his cause personally, without the assistance of counsel, as he had a right to do. In the light of all of the facts, as disclosed by the bill of exceptions and the record, it is clear to us that this

defendant was not deprived of his constitutional right to have the benefit of counsel."

In State v. De Serrant (1881) 33 La. Ann. 979, wherein it appeared that on the day fixed for the trial the accused announced himself ready, that the witnesses called by the state were cross-examined by the accused, and that the accused did not make any requests for the appointment of counsel, it was held that the judgment below should not be disturbed on the ground that the accused was not properly represented during the trial.

So, where an accused was offered counsel by appointment several days prior to the day of his trial, and refused the appointment and elected to defend himself, and at the time of the trial did conduct his own case, examined the witnesses, and addressed the jury, a new trial on the ground that he was not represented by counsel was refused. Compton v. State (1912) 67 Tex. Crim. Rep. 15, 148 S. W. 580. A like conclusion was reached in State v. Perry (1896) 48 La. Ann. 651, 19 So. 684, under similar facts.

Passing on the right of the accused to try his own case, the court in State v. Kelly (1873) 25 La. Ann. 381, said: "The 6th article of the Constitution of the state secures to every person charged with crime the right of being heard by himself or counsel. But we do not understand that counsel can be forced upon him. He has the right to be heard by himself, and inasmuch as, when brought to the bar in the custody of the sheriff, as appears from the record, he was ready for his trial, we must presume that if he had no counsel, and did not ask the court to assign him one, he chose to be heard in his own defense. The fact that, in his application for a new trial, he stated that he was without counsel, and was thus unable to defend himself, is no reason why this court should reverse the judgment, which was based upon the verdict of a jury."

In State v. Terry (1907) 201 Mo. 697, 100 S. W. 432, the court construed a statute (Rev. Stat. 1899, § 2560) providing that "if any person about to be arraigned upon an indictment for

a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours." It was held that where the accused elects to conduct his own defense rather than employ counsel or have the court assign counsel for him, he will not be granted a new trial on the ground that he has been denied the benefit of counsel. The court said: "It will be noticed from this statute that three things are necessary to be found by the trial court before appointing or assigning counsel for a defendant charged with felony: First, that the defendant is without counsel; second, that he is unable to employ counsel; third, that` the defendant has requested that counsel be appointed for him. record does not show that defendant requested the court to appoint counsel. for him, but it does disclose that the court found that he was able to employ counsel. Defendant being able to employ counsel, it was not the duty of the court to appoint counsel for him, even though he had requested it. Besides, his failure to make such a request was a waiver of this statutory right."

This

It has been held that, if there is nothing in the record to show the contrary, it will be presumed that an accused did not desire the assistance of counsel. Cutis v. State (1907) 54 Fla. 21, 45 So. 491, wherein the court said: "It has been the general practice in trial courts in this state, when a party charged with felony has been brought to bear for arraignment, to inquire of the accused whether he had counsel to represent him, and if, upon inquiry, it developed that he had no attorney and was unable to employ one, to ask the accused whether he desired one to represent him. If he signified his desire to be represented by counsel, then it has been the practice for the trial judge to appoint some attorney to represent the accused. This practice is in accord with the letter and spirit of § 11 of the Bill of Rights, and § 3969

of the General Statutes of 1906.

In the absence of anything from the record which shows the contrary, it must be presumed that the trial court did its duty. It cannot be presumed that an accused person was denied the privilege of counsel when desired by him. . . . The record in the instant case does not show affirmatively that the defendant was assisted in his defense by counsel, until after the verdict of guilty had been rendered and a motion for a new trial was made. It does not show affirmatively that the trial judge advised the defendant of his privilege of being assisted by counsel, or of his privilege of having compulsory process for the attendance of witnesses in his favor, if he had any, or that he waived these privileges. No affidavits or proofs were offered and filed stating what the actual facts were, upon the hearing of the motion for a new trial. In this condition of the record, and in view of the fact that under the statute (Gen. Stat. § 1347) every man has the right to manage his own cause in any of the courts of this state, we must assume that the trial judge did his duty, and that the privileges accorded the defendant by the Bill of Rights and the statutes were waived." To the same effect, and following Cutts v. State (Fla.) supra, see Weatherford v. State (1918) 76 Fla. 219, 79 So. 680, wherein the court said: "It does not appear that the accused was not competent to 'manage his cause,' or that he in fact desired the assistance of counsel; nor is there anything to indicate that the accused did not have a fair trial wherein all of his substantial rights were accorded to him in due course."

The rule heretofore stated has also been applied in cases wherein the court refused to grant a continuance because of the absence of the defendant's counsel, but offered to appoint another attorney, and the defendant declined to avail himself of this offer, insisting that his original attorney should be present, and subsequently conducted his own defense. Thus, in People v. Russell (1909) 156 Cal. 450, 105 Pac. 416, the court said: "Defendant would have had counsel desig

nated to assist him in his defense if he had availed himself of the offer of the court, and doubtless, if counsel so designated had found a reasonable continuance necessary to enable a proper presentation of defendant's cause, the trial court would have granted it. Defendant cannot now complain that he was not represented by counsel, that fact being due entirely to the further fact that he declined to accept the offer of the court in regard thereto."

So, it appeared in State v. Fulco (1916) 138 La. 995, 71 So. 134, that several weeks before the trial the court offered to assign counsel to the defendant, but he refused, stating that he did not want any lawyer, and elected to conduct his own defense. After the state had introduced its evidence the defendant then insisted on a continuance for the purpose of obtaining counsel, which was refused, and, after a verdict of guilty, appealed from a motion denying him a new trial, complaining that he was not represented by counsel at the trial. It was held that the motion for a new trial was without merit.

Where, however, it is apparent that the defendant is mentally incapable of comprehending the nature of his defense, the trial judge should stop the trial and appoint an attorney to defend. Stephenson v. State (1915) 4 Ohio App. 128, wherein the court said: "We think that the record shows that there was really no trial, so far as the defendant was concerned. It is quite evident that at the time of the trial the defendant was mentally incapable of comprehending the nature of his defense, and we think this fact must have been apparent to the court at the time. While defendant seems to have thought he was making a defense, still it was really no defense, and, realizing this fact, we think the judge should have stopped the trial of the case and appointed some counsel to defend, so that the trial might have been properly carried on. We think that the law contemplates that a defendant should have a fair trial. The record in this case virtually shows that there was no trial so far as the defendant was

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