State v. Cowart
| Decision Date | 25 July 1968 |
| Docket Number | No. 18813,18813 |
| Citation | 251 S.C. 360,162 S.E.2d 535 |
| Parties | The STATE, Respondent, v. Ernest Billy COWART and Danny Lee Cowart, Appellants. |
| Court | South Carolina Supreme Court |
J. D. Todd, Jr., Greenville, for appellant.
C. Victor Pyle, Greenville, for respondent.
Billy Cowart and Danny Lee Cowart, the appellants herein, were convicted of assault and battery of a high and aggravated nature in the September 1967 term of Greenville County Criminal Court upon an indictment returned by the grand jury of Greenville County December, 1966. At the time of trial Billy Cowart was 20 years of age and Danny Lee Cowart was 17 years of age. The appellants appeared in court in February, April and September, 1967, and requested the county judge to appoint counsel for them on the grounds that they were indigent and did not have the necessary funds to procure such.
When the appellants appeared before the county judge on April 12, 1967, and requested the appointment of counsel, the court found out that both appellants were unmarried and not in school. One of the appellants said that he was working with Sanitary Plumbing and when asked why he didn't get a lawyer, his reply was, 'I can't afford one, not right yet.' Thereupon the county judge said:
The Solicitor, on September 25, 1967, advised the county judge that he would like to set the case against the appellants for trial on the Monday following. He also advised the court that they had been before him on April 12, 1967, and requested the appointment of counsel to represent them and that the court advised them that it could not appoint an attorney. The court was told by the Solicitor that he had these appellants to come in 'to tell us what the situation was'. Thereupon, the following took place:
'THE COURT:
As I recall, at that time you were both unmarried and neither of you were working? And you both nod your heads affirmately.
Do you have counsel now?
Both answered: No, sir.
Well, you are not going to get one from this Court now. I told you that there are people (and I told you this before) who are dying for just labor in this county. And if you haven't gone out and made money and retained counsel, it is because you are either too lazy, or do not want to work. And you will get convicted, or get acquitted on your own. I will not appoint counsel for you.'
The trial of the appellants without counsel took place on October 2, 1967. A jury, consisting of six members, was selected as is provided in Section 15--671 of the Code. The appellants objected to a trial by a jury consisting of six jurors and insisted that they should be tried by a jury consisting of twelve. This objection was overruled by the trial judge. There was no appeal from the trial and conviction of the appellants.
Subsequently, on December 13, 1967, the appellants forwarded a letter to the Clerk of Court for Greenville County, South Carolina, which, in effect, and was so considered by the trial judge to be an application for a writ of habeas corpus on the grounds that they were not represented by legal counsel at their trial; that they had demanded a twelve man jury and were convicted by a six man jury. The Judge of the County Court appointed counsel to represent the appellants at the hearing on the writ of habeas corpus. A hearing was held on January 5, 1968, before the county judge and at such hearing the appellants contended (1) that they had been deprived of their constitutional right to a fair trial by the failure of the court to appoint counsel to defend them, and (2) that they should not have been tried by a six man jury after having made demand for a twelve man jury.
The county judge, according to the agreed statement, on February 22, 1968, denied the relief sought by the appellants, holding that since the appellants 'were able-bodied and capable of earning a livelihood, that they were not indigent and were thus not entitled to Court appointed counsel.' He also overruled the appellants' objection to a trial by a six man jury rather than by a jury consisting of twelve. It is from this order that the appellants prosecute this appeal.
The basic claim of the appellants is that they were denied their constitutional right to counsel and deprived of the rights of due process and the aid of appointed counsel contrary to the guarantees of the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 5 and 18 of the 1895 Constitution of this state.
Since the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, the right of the accused in a criminal prosecution to assistance of counsel under the Sixth Amendment to the Constitution of the United States is made obligatory upon the states by the Fourteenth Amendment, and where a person charged with crime in a state court is financially unable to retain an attorney the court must appoint one to act in his behalf, in the absence of an effective waiver by the accused. The rule announced in the Gideon case has been recognized and applied by this court. Pitt v. MacDougall, 245 S.C. 98, 138 S.E.2d 840. The effective assistance of counsel is a necessary requisite of due process of law. Crosby v. State, 241 S.C. 40, 126 S.E.2d 843.
A determination of an accused's indigency is a prerequisite to the right of court appointed counsel. We have not established any procedure in this state for the purpose of determining the indigency of an accused charged with crime. However, when an accused asserts indigency and makes a request for court appoint counsel the trial judge must, prior to trial, ascertain whether the accused is without means to procure counsel. If the trial judge finds that the accused is financially unable to obtain counsel he must then assign counsel to represent him. The factual question is not whether the accused ought to be able to employ counsel but whether he is, in fact, able to do so. At the time the appellants made a request for the appointment of counsel the facts in the record were insufficient to support the conclusion of the court that they were not entitled to such.
It is implicit from this record that when the appellants, on April 12, 1967, requested the appointment of counsel, the trial judge concluded that they were without means to employ counsel but in lieu of giving the appellants appointed counsel at that time he directed the case against them be continued until the next term of court and that they get employment and earn sufficient funds with which to employ their own counsel. The basis of this holding was that since the appellants were able-bodied they had no justifiable reason of being without funds with which to employ counsel in view of the job...
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Advisory Opinion to Senate
...act reducing the number of jurors from twelve to six was upheld despite the inviolate clause of a state's constitution. State v. Cowart, 251 S.C. 360, 162 S.E. 2d 535. In taking this position, the court pointed out, however, that there was a second so low that one's right to a jury trial wh......
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State ex rel. Peters v. McIntosh
...State v. Harris, 5 Conn.Cir. 313, 250 A.2d 719 (1968); Schmidt v. Uhlenhopp, 258 Iowa 771, 140 N.W.2d 118 (1966); State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968). See Ingram v. Justice Court for Lake Valley Jud. Dist., 69 Cal.2d 832, 73 Cal.Rptr. 410, 447 P.2d 650 (1968), where it is p......
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State v. Ham
...It is alleged that the judge should have made a factual determination that the defendant was indigent. He cites State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968) for the rule that when one claims to be indigent the judge must make an affirmative determination of indigency. Cowart is inap......
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Bowen v. State
...So.2d 759; People v. Chism, 17 Mich.App. 196, 169 N.W.2d 192 (1969); State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966); and State v. Cowart, 251 S.C. 360, 162 S.E.2d 535. See also Wood v. United States, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed.2d 20 (1967); Nielsen v. Turner, 287 F.Supp. 116 at 122 (......