Reed v. State

• Decision Date: 11 October 1926
• Docket Number: 26002
• Court: Mississippi Supreme Court
• Parties: REED v. STATE. [*]

109 So. 715

143 Miss. 686

REED v. STATE. ^[*]

No. 26002

Supreme Court of Mississippi

October 11, 1926

Division B

1 MOTIONS.

A motion is at issue without further pleading, and the movant must, to sustain his motion, introduce proof on such issue.

2. CRIMINAL LAW.

A person accused of crime other than a capital offense is not entitled to have the court appoint him counsel, but must employ counsel or go without representation.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Dennis Reed was convicted of stealing an automobile, and he appeals. Affirmed.

Judgment affirmed.

Bush & Boyd, for appellant.

Under the law this case should be reversed because appellant should have been told by the court that if he had no counsel and could not procure counsel, the court would appoint counsel for him. This was not done and for this reason a motion for a new trial should have been sustained. It may be argued that ignorance is no plea in law, but we submit that it is often a palliating circumstance and should at times be observed by any court.

In the motion to set aside the verdict, it is shown that appellant was arrested on a charge of larceny and was taken into custody and tried before he could get in touch with his people or try to arrange for counsel in his necessary defense.

J. A. Lauderdale, Assistant Attorney-General, for the state.

It appears from the record that appellant had from March 27 to April 6 in which to secure counsel and prepare his defense. There is absolutely nothing in the record to show that appellant was unable to secure counsel himself. There is nothing to show whether or not he consulted with friends and relatives before the trial or after the trial; and there is nothing to show that they could not secure counsel for him. In other words, there is no proof supporting the allegations contained in the first ground of the motion for a new trial; and even if there were proof, it could not prevail here.

The second ground of the motion is not well taken for the reason that neither the Constitution nor the statutes of the state of Mississippi require or allow the court to appoint counsel for a defendant charged with a crime where the punishment is less than death. Section 26 of the Constitution does guarantee to a defendant the right to be heard by himself, or counsel, or both, but this section does not require the court to appoint counsel for him.

Section 1239, Hemingway's Code, provides that "Any person in jail, charged with a capital crime, or who is indicted for such crime, who is unable to employ counsel, shall, at his request, be allowed counsel not exceeding two, to be chosen by the judge in vacation, or by the court."

The appellant in the court below was not charged with a capital crime and, therefore, the court had no right to appoint counsel for him. The record does not show that he was unable to secure counsel before the trial.

OPINION

ETHRIDGE, J.

The appellant was indicted and tried for stealing an automobile and was placed upon trial and convicted, not being represented at the time by counsel. After the jury had rendered a verdict of...