State v. Moore

Decision Date07 April 1900
Docket Number11,664
PartiesTHE STATE OF KANSAS v. ALVA MOORE
CourtKansas Supreme Court

Decided January, 1900.

Appeal from Montgomery district court; A. H. SKIDMORE, judge.

Judgment reversed and cause remanded.

J. S West, assistant attorney-general, and John Callahan, county attorney, for The State.

Lamb & Hogueland, and S. C. Holcomb, for appellant.

OPINION

JOHNSTON, J.:

An information was filed on September 25, 1899, charging Alva Moore with the larceny of "one brown mare mule of the value of seventy-five dollars, one bay horse mule of the value of seventy-five dollars, one Racine one-horse top buggy, complete, of the value of sixty-five dollars, and one set of single buggy harness of the value of three dollars," etc. The next term of the district court began on the first Tuesday of November, which was the day of the general election. On November 6, one of the attorneys employed to defend Moore, and who resided in another county telegraphed the county attorney of Montgomery county inquiring "when the Moore case would be heard," and on the same day he received a reply by wire that "Moore case will be set for trial the 8th." On the 7th the defendant was brought into court by the sheriff, and, in the absence of his attorneys, was required to plead to the information, and he entered a plea of not guilty. His attorneys appeared on the following day and a trial was had which resulted in the conviction of the defendant. Counsel contend that the action of the court in requiring the defendant to plead to the information on election day, in the absence of his attorney, and when the county attorney had wired counsel for defendant that the case would not be taken up until the following day, was fatal error.

The defendant needed and was entitled to the aid of counsel when he was arraigned and required to plead. "With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel." (Cooley, Const. Lim., 6th ed., 406.) The constitution of the United States (6th amend.) expressly provides that, "in all criminal prosecutions, the accused shall enjoy the right . .to have the assistance of counsel for his defense "; and a like provision is made in our state constitution. (Bill of Rights, § 10.) In order that the accused may have the full benefit of this fundamental right, the legislature has provided that when he is about to be arraigned upon a charge of felony, and is without counsel and unable to employ any, it is the duty of the court to appoint counsel to conduct his defense, upon request. (Gen. Stat. 1897, ch. 95, § 160; Gen. Stat. 1899, § 4410.)

So important is the presence of counsel regarded that it has been held to be error for the judge to repeat an oral charge to the jury in the absence of counsel for the defendant. ( State of Louisiana v. Davenport, 33 La. Ann. 231.) In People v. Trim, 37 Cal. 274, it was held to be a fatal error for the court to give further instructions to the jury in the absence of the defendant's attorney, although the defendant himself was present. In another case it was held that the accused could not be deprived of the guaranteed right to be represented by counsel because he was a lawyer and that to compel him to proceed without counsel was a plain and palpable violation of a fundamental right. (People v. Napthaly, 105 Cal. 641, 39 P. 29.) His right is not limited to proceedings at and subsequent to the impaneling of the jury, but he needs and is entitled to counsel at every step and stage of the prosecution. It has been held that an accused person imprisoned and awaiting the action of the grand jury has a constitutional right to a private interview with counsel, and that such right...

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19 cases
  • Powell v. State of Alabama Patterson v. Same Weems v. Same 8212 100
    • United States
    • United States Supreme Court
    • November 7, 1932
    ...v. State, 54 Fla. 21, 23, 45 So. 491; Martin v. State, 51 Ga. 567, 568; Sheppard v. State, 165 Ga. 460, 464, 141 S.E. 196; State v. Moore, 61 Kan. 732, 734, 60 P. 748; State v. Ferris, 16 La.Ann. 414; State v. Simpson, 38 La.Ann. 23, 24; State v. Briggs, 58 W.Va. 291, 292, 52 S.E. In the li......
  • Wood v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 1942
    ...L.Ed. 158, 84 A.L.R. 527; People v. Napthaly, 1895, 105 Cal. 641, 39 P. 29; Cutts v. State, 1907, 54 Fla. 21, 45 So. 491; State v. Moore, 1900, 61 Kan. 732, 60 P. 748; cf. Palko v. Connecticut, 1937, 302 U.S. 319, 324, 58 S. Ct. 149, 82 L.Ed. 288; Patton v. United States, 1930, 281 U.S. 276......
  • State v. Lawson
    • United States
    • United States State Supreme Court of Kansas
    • April 5, 2013
    ...to counsel “ ‘at every step and stage of the prosecution.’ ” State v. Oberst, 127 Kan. 412, 417, 273 P. 490 (1928); State v. Moore, 61 Kan. 732, 735, 60 P. 748 (1900). The right was not “ ‘limited to proceedings at and subsequent to the impaneling of the jury’ ” but also gave a defendant wh......
  • Hoy v. State
    • United States
    • Supreme Court of Indiana
    • December 11, 1947
    ...with counsel at every stage of the proceedings. People ex rel. Burgess v. Hisley, 1883, 66 How.Prac. (N.Y.) 67;State v. Moore, 1900, 61 Kan. 732, 60 P. 748. In the case first cited the court said: ‘Perhaps the literal letter of the constitutional provision would be complied with by allowing......
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