Humphries v. United States., 828.

• Decision Date: 13 October 1949
• Docket Number: No. 828.,828.
• Court: D.C. Court of Appeals
• Parties: HUMPHRIES v. UNITED STATES.

68 A.2d 803

HUMPHRIES

v.UNITED STATES.

No. 828.

Municipal Court of Appeals for the District of Columbia.

Argued Sept. 12, 1949.

Decided Oct. 13, 1949.

Wilbur Humphries was convicted in the Municipal Court for the District of Columbia, Criminal Division, of assault, and he appealed.

The Municipal Court of Appeals, Hood, A. J., affirmed judgment, holding that record did not establish that defendant's waiver of counsel was not competently and intelligently made, and that court did not abuse discretion in denying defendant's motion made after conviction and sentence, to withdraw plea of guilty and to enter a plea of not guilty.

Maurice R. Weeks, Washington, D. C., with whom Brown, Howard & Weeks, Washington, D. C., were on the brief, for appellant.

L. Clark Ewing, Assistant United States Attorney, Washington, D. C., with whom George Morris Fay, United States Attorney, and Joseph M. Howard, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

Appellant was arrested and charged with assault (Code 1940, 22-504), and on the same day brought into court for arraignment. The clerk asked appellant if he was represented by a lawyer and he replied he was not. The clerk then asked if appellant wanted a lawyer and appellant replied that he did not. Appellant was then called on to plead to the charge and he entered a plea of guilty. The clerk then asked appellant if he was sure he did not want a lawyer. Appellant again stated that he did not want a lawyer. The judge then informed appellant that the charge against him was a serious one and asked if appellant was sure he did not want a lawyer. For the third time appellant stated he did not want a lawyer.

The judge then called the complaining witness and interrogated her. Her answers indicated that appellant had assaulted the witness in an attempt to rape her. When the questioning was completed the judge asked appellant if he had anything to say. Appellant replied that he did not. The judge, commenting on the seriousness of the offense, then sentenced appellant to a jail term of 360 days, the maximum imprisonment allowed for simple assault.

Two days later appellant through counsel filed a motion to vacate the plea of guilty, to set aside the sentence, and to grant a trial by jury. The grounds of this motion were that appellant without advice of counsel entered a plea of guilty, and, admitting that the court offered to appoint counsel, that appellant ‘feels he was not fully advised as to his constitutional rights.’ The motion was denied and this appeal followed.

The argument is made that in view of the seriousness of the charge the trial court should have appointed counsel to defend, even though appellant indicated that he did not desire counsel, because advice of counsel was necessary to protect the rights of appellant.

In Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 146 A.L.R. 357, it was said: ‘The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.’ This principle has been restated in many subsequent cases. ¹ One who pleads guilty has the same right to assistance of counsel as one who pleads not guilty. Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 637. There is, however, no absolute requirement that an accused be represented by counsel. Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003. The right to counsel may be waived. ‘The short of the matter is that an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel.’ Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268, 143 A.L.R. 435. The Constitution ‘does not require that under all circumstances counsel be forced upon a defendant.’ Carter v. People of State of Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 218, 91 L.Ed. 172. These principles have been restated in Federal Rule of Criminal Procedure No. 44, 18 U.S.C.A., as follows:

‘If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.’

None of the above principles are disputed here. Appellant was advised of his right to counsel and he undertook to waive that right. The argument made is that the waiver was one of form and not of substance, that there was no true waiver because not competently and intelligently made, that despite the formal waiver the trial judge ought to have appointed counsel to insure protection of appellant's rights.

[4] There is nothing in the record to show that the waiver was not intelligently and competently made. There times appellant was asked if he wished counsel and each time h...