Swagger v. State
Decision Date | 03 December 1956 |
Docket Number | No. 4859,4859 |
Citation | 227 Ark. 45,296 S.W.2d 204 |
Parties | Eugene SWAGGER, Appellant, v. The STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
George Howard, Jr., Pine Bluff, for appellant.
Tom Gentry, Atty. Gen., Paul C. Rawlings, Asst. Atty. Gen., for appellee.
The appellant, Eugene Swagger, a boy nineteen years of age, pleaded guilty to the charge of assault with intent to kill and was given the maximum sentence of 21 years in the penitentiary. Later, after having been committed to the penitentiary, he filed a motion to set aside the judgment of conviction and order of commitment on the ground that he was not represented by counsel at the time he entered the plea of guilty.
On the night of April 13, 1956, S. R. Cady was shot and seriously injured. He was in his home, and the shot was fired through a window from the outside. The next morning, April 14, Swagger was arrested. On Friday, April 20, the Prosecuting Attorney filed an information in Circuit Court charging him with assault with intent to kill. Monday morning, April 23, the defendant pleaded guilty to the information and was sentenced to 21 years in the penitentiary. He was committed to the prison, and on May 29, 1956 he filed a motion to vacate the judgment.
He alleges in the motion:
After a hearing, the trial court overruled the motion and Swagger has appealed.
Article 2, Section 10, of the Constitution of Arkansas provides that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and his counsel. Ark.Stats. § 43-1203 provides: 'If any person about to be arraigned upon an indictment for a felony, be without counsel to conduct his defense, and shall be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two , who shall have free access to the prisoner at all reasonable hours.' The Fourteenth Amendment to the Constitution of the United States provides that no State shall 'deprive any person of life, liberty, or property, without due process of law.'
The defendant had not been in trouble previously, and knew nothing about lawyears or court procedure. At the hearing on the motion to vacate the judgment, he testified to facts substantially as alleged in his motion. The Prosecuting Attorney, in response to questions by the Court, testified:
The Prosecuting Attorney was called back for cross examination and further testified:
'
The Court stated:
The record does not show that the Court personally informed the defendant that a lawyer would be appointed to represent him if he so desired. On cross examination, the Prosecuting Attorney stated that he had informed defendant while in jail that a lawyer would be appointed for him, but the defendant's response, if any, to such communication is not shown, and it does not appear that the defendant fully understood the Court would appoint a lawyer to represent him, and no lawyer was appointed.
We have held that it is within the discretion of the Court as to whether the defendant would be permitted to withdraw a plea of guilty. Adams v. Plummer, 213 Ark. 209, 209 S.W.2d 868. But, in Williams v. State, 163 Ark. 623, 260 S.W. 721, we held that where there are grounds for believing that the defendant is not capable of conducting his own trial, the Court should not permit the trial to proceed without the defendant having the aid of counsel. In the Adams case, appellant alleged in his motion that he was deprived of his liberty without due process of law, but it was pointed out by this court that the petitioner offered no evidence in support of the motion. In the case at bar, appellant did produce evidence as to the circumstances surrounding his plea of guilty. It was shown that he is a negro boy, nineteen years of age, and is practically illiterate although his petition alleges he has gone to school; that he lives with an aunt 68 years of age; that during the few days he was held in jail, between the time he was arrested and the time he entered a plea of guilty, his aunt tried to visit him, but the jail authorities would not permit her to do so. True, the Prosecuting Attorney told the defendant while he was in jail that on a plea of guilty he would get him a sentence of 21 years in the penitentiary. But, it appears that perhaps the accused did not know that 21 years was the maximum sentence he could receive. In fact, the record indicates that the accused may have thought that he could be sentenced to a longer term of imprisonment.
The proposition of whether the failure to appoint counsel for an indigent defendant was a violation of the due process clause of the Fourteenth Amendment has been before the courts many times. In most instances, since the decision in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 146 A.L.R. 357, the courts have held it to be error to permit a young, inexperienced person to plead guilty to a serious charge where he has no attorney. In the Johnson case, speaking of the defendant, the court said: "He requires the guiding hand of counsel at every step in the proceedings against him.' * * * The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. * * * The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused's ignorant failure to claim his rights removes the protection of the Constitution.' However, the court is not...
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...a twelve-member jury in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). Similarly, this court made it clear in Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956), that a judgment is void where there is an absence of due process. See also Miller v. State, 239 Ark. 836, 394 S.W.2d 60......
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...721. Otherwise, the determination in each case must depend upon the particular facts and circumstances surrounding it. Swagger v. State, 227 Ark. 45, 296 S.W.2d 204; Jackson v. State, 249 Ark. 653, 460 S.W.2d 319. Even a minor who is mildly defective mentally may knowingly and intelligently......
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State v. Rainer
...attorney improperly commented on the defendant's failure to testify and thereby violated defendant's rights); Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956) (holding that the trial court's acceptance of a plea of guilty without the defendant having benefit of counsel violated the defe......
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Tornavacca v. State
...a twelve-member jury in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). Similarly, this court made it clear in Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956), that a judgment is void where there is an absence of due process. See also Miller v. State, 239 Ark. 836, 394 S.W.2d 60......