Odom v. State

• Decision Date: 08 November 1948
• Docket Number: 36938.
• Citation: Odom v. State, 205 Miss. 572, 37 So.2d 300 (Miss. 1948)
• Court: Mississippi Supreme Court
• Parties: ODOM v. STATE.

37 So.2d 300

205 Miss. 572

ODOM v. STATE.

No. 36938.

Supreme Court of Mississippi

November 8, 1948

Morse & Morse, of Poplarville, and Grayson B Keaton, of Picayune, for appellant.

Greek L. Rice, Atty. Gen. and R. O. Arrington Asst. Atty. Gen., for appellee.

McGEHEE, Justice.

The principal question presented for decision on this appeal is whether or not the trial court was required to furnish, or offer to furnish, an attorney to represent the accused Riley Odom upon his trial on the non-capital felony charge of having committed the crime of burglary, for which he was convicted and sentenced to the state penitentiary for a term of three years.

Unless the trial court owed the above mentioned duty to the accused in the absence of a request for an attorney or showing of inability to employ one, in order to comply with the requirements of the Federal Constitution or with the Constitution and laws of this State, then the failure of the court to exclude the defendant's confessions of the alleged crime is not reversible error in the absence of any objection to the introduction thereof as free and voluntary confessions.

We are asked to reverse the case on only the two alleged errors mentioned in the last preceding paragraph, the evidence being ample to sustain the conviction of the accused if the confessions were properly admitted in evidence. Moreover unless the accused was deprived of a constitutional right by the failure of the trial court to furnish, or offer to furnish, an attorney to defend him, we would not reach the question as to whether the confessions were properly admitted for the reason that the trial court can not be put in error for admitting a confession of guilt where it is done without objection on the part of the defendant during his trial unless the same is manifestly given under duress or is obviously untrue.

As to whether or not the trial of the appellant on a non-capital felony charge without the assistance of an attorney for the presentation of his defense was a denial of due process of law, we shall discuss, first, the question of whether the Constitution and laws of this State were thereby violated, and, second, whether there was a violation of the Sixth Amendment to the Federal Constitution or the due process clause of the Fourteenth Amendment thereto.

Article 3, Section 14, of our State Constitution provides that 'No person shall be deprived of life, liberty, or property except by due process of law', and the Legislature has prescribed what shall constitute due process of law under our State Constitution in regard to the circumstances under which an attorney shall be appointed to defend one charged with a violation of the state law. Section 2505, Code 1942, provides in part, '* * * Where any person is in jail charged with a capital crime, or is indicted for such crime, and the court being first satisfied that such person is unable to employ counsel, such person shall be allowed counsel not exceeding two, to be chosen for him by the judge in vacation or by the court, to defend him in the circuit court, upon the trial of such charge, * * *.' (Italics ours.)

And the Supreme Court of this State in the case of Reed v. State, 143 Miss. 686, 109 So. 715, wherein the accused was convicted of a non-capital felony, said: 'It is not the law that the state must furnish counsel to persons charged with crime, except in capital cases. In all other cases the defendant must procure counsel or act for himself in his trial. The court has no power to employ counsel to be furnished him.' Of course, this holding to the effect that the Court has no power to employ counsel in such a case means that no such power is conferred or required to be exercised by either the Constitution or laws of the State.

Then, too, in the case of Caldwell v. State, 176 Miss. 80, 167 So. 779, this Court held: 'The Sixth Amendment to the Federal Constitution provides that in all criminal prosecutions the accused shall have the right to a speedy public trial, by an impartial jury of the state and district wherein the crime was committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The amendment has no application to state action; it is not a limitation of the powers of the states, and it is confined alone to federal action. Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801; Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582; Howard v. [Commonwealth of] Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421.'

Therefore, it will be seen that according to the previous decisions of this court there was no failure to comply with any state statute nor with any requirement of our State Constitution. Also that under the Caldwell case there was no violation of the Sixth Amendment to the Constitution of the United States as interpreted by our State Supreme Court.

Passing then to the question of whether or not there was a violation of either the Sixth Amendment of the Federal Constitution or the due process clause of the Fourteenth Amendment thereto, according to the decisions of the Supreme Court of the United States, we find that the principle announced in the Caldwell case was in effect upheld and reaffirmed in the case of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, when the Supreme Court of the United States declared that the provision of the Sixth Amendment of the Federal Constitution, giving to an accused in a criminal prosecution the right to have the assistance of counsel for his defense, applies only to trials in the Federal courts.

And again that Court held as late as April 19, 1948, in the case of Roy Bute v. People of the State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 766, 92 L.Ed.--that the due process clause of the Fourteenth Amendment to the Federal Constitution would not of its own force require a tender of the assistance of counsel to one charged in a state court with a non-capital crime, and stated that since the circumstances of that particular case were not such as to make such tender essential to due process the defendant had been lawfully convicted without the benefit of counsel. The Court commented that the record before it in the Bute case 'does not show that the court inquired as to the petitioner's desire to be represented by counsel, or his ability to procure counsel, or his desire to have counsel assigned to him to assist him in his defense, or that such counsel was offered or assigned to him. We hold that such a silence in the respective records does not suffice to invalidate the sentences. We hold further that, in the absence of any showing beyond that in these records, the due process clause of the Fourteenth Amendment did not require the Illinois court to make the inquiries or the offer or assignment of counsel now claimed to have been the right of the petitioner.'

Such was 'the law of the land' on April 30th, 1948, when this appellant was convicted of the crime of burglary. The opinion in the Bute case is well reasoned and is abundantly supported by all previous federal decisions. The conclusion therein reached was also required by a recognition of the Tenth Amendment to the Federal Constitution. The opinion declares that 'One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788. It was emphasized in the 'Bill of Rights,' ratified in 1791.' The decision upholds the principle that 'there has been no change that has taken from the states their underlying control over their local police powers and state court procedures. They (the states) retained this control from the beginning and, in some states local control of these matters long antedated the Constitution. The states...