The defendants were convicted of murder and sentenced to be electrocuted. An appeal is taken by them from the judgment of conviction and the sentence of death.
The defendants were jointly charged in the indictment. They were unable to afford counsel, and the Judge appointed an attorney with over five years' experience to represent both defendants. Three attorneys with less than five years' experience were appointed by the State to assist senior counsel. Thereupon, after consultation with counsel, defendants filed motions for separate counsel.
Bill of Exception No. 1, filed by Ruby Johnson, alleges that he is individually entitled to an attorney with five years' experience in the practice of law to represent him, because the charge is capital; that the codefendant, Jasper Brazile, has made statements, now in the possession of the State, which are detrimental and antagonistic and prejudicial to mover, and his interest would be prejudiced to have the same counsel represent Jasper Brazile and mover.
Bill of Exception No. 2 is almost identical with Bill of Exception No. 1, because this is a separate application for separate counsel made by Jasper Brazile, the codefendant.
Motions for assignment of separate counsel were filed by both defendants before arraignment, and in denying them the trial court cited as authority the case of State v. Dowdy, 217 La. 773, 47 So.2d 496. Bills of Exception Nos. 1 and 2 were, therefore, taken and perfected to the overruling of defendants' motions for separate counsels, and on this appeal we shall only concern ourselves with those two bills.
Counsel for defendants argues that under the Constitution of the United States and the Constitution and Revised Statutes of the State of Louisiana, where one is charged with a capital offense, "he", the accused, is entitled to individual counsel of over five years' experience at the bar when such accused is unable to hire a private attorney by reason of impecunious circumstances. Both defendants argue that under the circumstances here interposed they are prejudiced, and in order to avert prejudice or inconsistency of a separate defense, counsel must be granted to each to satisfy the constitutional requirements.
Article I, Section 9, of the Constitution of Louisiana of 1921, reads:
LSA-Revised Statutes 15:142 states:
LSA-Revised Statutes 15:143 provides:
This case is capital, and the accused is entitled to counsel under the above-quoted provisions. In reading the Constitutional Articles and the Provisions of the Revised Statutes, we note that the language of the Articles and Revised Statutes of Louisiana is in the singular "he", granting to the man charged the right to counsel.
The United States Supreme Court, in Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 365, 89 L.Ed. 398, held that in criminal prosecutions for capital offenses, "the right to counsel * * * is * * * protected by the Fourteenth Amendment."
The Fourteenth Amendment, in part, reads:
These two accused sentenced to death are ignorant and illiterate. There is crimination and recrimination by each. They are naturally dependent, for the perfection of a defense, on their counsel, a man of education and learning. In the case of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, at page 65, 77 L.Ed. 158, the United States Supreme Court held:
The right to counsel is absolute; the question is—Does the naming of joint
Defendants' counsel, in showing a prejudicial conflict of presentation, was asked:
Even though we are only passing on Bills of Exception Nos. 1 and 2, we feel urged to mention that the record further shows a reason well worthy of consideration in determining whether there is a confliction of interests in the legal presentation of the defense. In impaneling the jury for trial, one of the accused exhausted his twelve challenges. The other accused did not exhaust his challenges—there being only eleven taken. The State argues that we should not consider the additional bills because the challenges were not exhausted by one of the accused. This in itself shows a necessity for separate counsel.
In the case of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 467, 86 L.Ed. 680, (See 148 A.L.R. 183) the United States Supreme Court passed on the question of separate counsel and said:
This pronouncement should round off and smooth the angle of any difference of opinion.
And then in the same decision, on page 467, 62 S.Ct., the Court had this to say:
"To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. [Commonwealth of] Mass., 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674, 90 A.L.R. 575; Tumey v. [State of] Ohio, 273 U.S. 510, 535, 41 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243; Patton v. United States, 281 U.S. 276, 292, 50 S.Ct. 253, 256, 74 L.Ed. 854, 70 A.L.R. 263. And see McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205. Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court. In conspiracy cases, where
The California case of People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 28, 148 A.L.R. 176, is almost identical with this case. In that case the Supreme Court of California said:
In the lower court, after motions for separate counsel were overruled, Mr. George M. Foote, senior counsel, stated that as an attorney he would do his best, but that he earnestly believed he should represent one accused and the other defendant should have another counsel. This clearly shows that he was placed in a position beyond his control. Before the bar of this Court he was sincere in stating that he was unable to represent both accused to the degree of efficiency required in a capital criminal case. He argued that he was unable to plead mitigation of one defendant for fear of prejudicing the other.
In the case of State v. Jones, 174 La. 1074, 142 So. 693, 694, the Court passed upon the declaration of counsel as to his inability to serve and said this:
"We have no reason to assume that the attorney's declaration, to that effect, in this instance, was made merely for the purpose of evading a duty, or was not true. Attorneys at law are, in a sense, officers of the court, and are
In the suit of People v. Bopp, 279 Ill. 184, 116 N.E. 679, 682, the Court said:
From the above authorities, we deduce the law to be that in a capital case the accused is entitled to counsel and that a refusal to afford him counsel is a deprivation of due process. United States Constitution, Amendment XIV; Article I, Section 9, Louisiana's Constitution of 1921.
The above decisions answer the question posed. Under the circumstances presented, individual counsel should have been appointed for each accused. There was error in appointing joint counsel for the two defendants.
The case of State v. Dowdy, 217 La. 773, 47 So.2d 496, cited by the trial judge as authority for overruling the motions for separate counsel, cannot be held as an authority in this case. In the Dowdy case there was joint counsel, but no request was made by either defendant for separate counsel. Therefore, the question, as to whether a refusal to appoint individual counsel where such counsel was requested was a deprivation of due process, was not presented. We cannot read into that decision that which was not raised.
Counsel for the defendants filed a motion for a new trial, which incorporated the points raised in Bills of Exception Nos. 1 and 2. We think that this motion should have been granted. We find that there was prejudice to these defendants in not granting to each of them separate counsel, in that they requested individual counsel and the joint counsel appointed by the court stated that the interests were prejudicial, conflicting and antagonistic and that justice could not be accomplished unless there was separate counsel.
The object of a criminal prosecution is not to convict; neither is it to acquit. The real ultimate object is a trial in accordance with the Constitution and laws of the State and of the United States. We must not condemn an accused in haste, but our judicial conscience must always remember that justice can always afford to wait until actual evidence of guilt is heard by due process of law.
The verdict and sentence appealed from are set aside and annulled, and the case is ordered remanded to the district court for a new trial.
FOURNET, C. J., absent.