Wyatt v. Wolf

• Decision Date: 02 April 1958
• Docket Number: No. A-12594,A-12594
• Citation: 324 P.2d 548
• Parties: Lee Roy WYATT, Petitioner, v. Silas C. WOLF, County Judge, Cleveland County, Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 548

324 P.2d 548

Lee Roy WYATT, Petitioner, v. Silas C. WOLF, County Judge, Cleveland County, Oklahoma, Respondent.

No. A-12594.

Criminal Court of Appeals of Oklahoma.

April 2, 1958.

Syllabus by the Court

1. Under the Constitution and laws of this state, the defendant is entitled to have an opportunity to consult with counsel at all stages of the proceedings, from the time he is arrested until the final disposition of the case.

2. A County Judge does not sit as a court of record when presiding as a committing magistrate.

3. A preliminary examination before a magistrate on a felony charge is not a trial.

4. The Criminal Court of Appeals is a court of limited jurisdiction, and mandamus will lie only in aid of appellate jurisdiction.

5. Mandamus will lie in aid of appellate jurisdiction to secure counsel for indigent defendant.

6. The right to payment of attorney's fees cannot be enforced in mandamus proceedings, since this Court can only resort to mandamus as an aid to appellate jurisdiction.

7. Every lawyer is an officer of the court, and as such subject to all lawful orders thereof.

Original proceeding in mandamus whereby petitioner seeks to have respondent appoint counsel to represent him in preliminary hearing pending before said respondent as examining magistrate, and further seeks to have said counsel compensated for his services from the court fund of Cleveland County, Oklahoma. Granted in part, and denied in part.

Paul W. Updegraff, Norman, for petitioner.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Hez J. Bussey, County Atty. of Cleveland County, Norman, Robert L. Pendarvis, Asst. County Atty., Norman, for respondent.

BRETT, Presiding Judge.

This is an original proceeding in mandamus brought by the petitioner, Lee Roy Wyatt, against Judge Silas C. Wolf, Judge of the County Court of Cleveland County, Oklahoma, sitting as a committing magistrate. It is prayed that the writ of mandamus issue to said Judge to require him to appoint counsel for the petitioner in the arraigning tribunal and to require the said Court to order the payment therefor from the court funds of said county.

It appears the petitioner was charged in said County Court by preliminary complaint with the commission of burglary in the second degree, said crime being committed on or about February, 21, 1958. The petitioner, being arraigned on preliminary hearing on March 11, 1958, requested appointment of counsel at said hearing because of his proverty. That, said County Judge refused to do on the basis of an advisory Attorney General's opinion, holding he was without attority so to do and pay the attorney so appointed out of the county's court fund. The question thus presented is obvious. When counsel is requested, should the magistrate appoint counsel for him and can he order payment for his services from the court fund of the county?

The answer to the first question is predicated upon certain Constitutional and statutory rights. In Duncan v. State, 89 Okl.Cr. 325, 207 P.2d 324, 330, we considered these provisions, as follows:

'It is fundamental in criminal law that a defendant is entitled to aid of counsel of his own choice, when able to employ one, and if not it is the duty of the court to appoint one for him. * * * It has been held, in felony cases, that this right is not limited to the trial alone but extends to every stage of the proceeding. Polk v. State, 26 Okl.Cr. 283, 224 P. 194; Sutton v. State, 35 Okl.Cr. 263, 250 P. 930; Brown v. State, 39 Okl.Cr. 406, 266 P. 476. The foregoing conclusion is all the more apparent in light of the provisions of the Bill of Rights of the Constitution, Art. II, § 20, reading in part as follows, to wit:

"In all criminal prosecutions the accused * * * shall have the right to be heard by himself and counsel; * * *.'

'Moreover, under the provisions of Title 22 O.S.A.1941 § 251, reading in part as follows, to-wit:

"When the defendant is brought before a magistrate upon an arrest, * * * the magistrate must immediately inform him * * * of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had."

In Thurmond v. State, 57 Okl.Cr. 388, 48 P.2d 845, it was announced:

'Under the Constitution and laws of this state the defendant is entitled to have an opportunity to consult with counsel at all stages of the proceedings, from the time he is arrested until the final disposition of the case, * * *.'

See also to the same effect Benton v. State, 86 Okl.Cr. 137, 190 P.2d 168, wherein, in syllabi 2, 3, and 4, we held:

'Under our laws, every person accused of felony is entitled to aid of counsel at every stage of the proceedings whether imprisoned or admitted to bail, unless waiver thereof clearly appears, and this right arises immediately upon the person's arrest. (Emphasis supplied.)

'Where it appears on appeal that a defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial.

'Where it appears, on appeal, that the defendant has been denied the right to aid of counsel and that substantial injury resulted thereby, the same will constitute grounds for reversal.'

We are not unaware that other courts hold the right to aid of counsel may properly be construed as being applicable only at the time of trial on the merits. Martin v. Edmondson, 176 Kan. 374, 270 P.2d 791; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Even in Oklahoma, under the foregoing cases it has been held absence of injury may not constitute grounds for reversal. Lyons v. State, 77 Okl.Cr. 197, 138 P.2d 142, 140 P.2d 248, affirmed 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, appearing to hold that a violation of the right to aid of counsel arises only when counsel is not appointed at the trial. But, this case is not a true example of the application of the rule governing right to aid of counsel as applied to preliminary hearings, since the facts therein show Lyons was ably represented by counsel appearing for his accomplice and for him as well and no injury resulted. We hold that the express provisions of the Constitution and the statutes and the clear implications thereof, especially 22 O.S.1951 § 251, is that the accused must be advised of his right to aid of counsel when brought before the magistrate. If he desires aid of counsel and is unable because of poverty to obtain counsel, it necessarily follows that the magistrate should appoint counsel for him. Certainly such practice is within the spirit of the law. Otherwise, the advice in such cases, as to the right, is a vain and meaningless gesture without affecting the provisions of the right. In other words, how can we assert the right in one instance and deny it in another? We are of the considered opinion that the clear intent of the foregoing provisions and interpretations thereof is that the accused is entitled to...