
    23733.
    COOK v. THE STATE.
    Decided January 10, 1933.
    
      Smith <& Millican, for plaintiff in error.
    
      Emmett Smith, solicitor, contra.
   Guerry, J.

The defendant was tried for and convicted of the offense of simple larceny. When the case was called for trial the following colloquy took place: The court: “George, have you got a lawyer?” The defendant: “No, sir.” The court: “Have you tried to get one?” The defendant: “No, sir, I ain’t tried to get one. I was just caugbt np yesterday.” The court: “Call the first twelve jurors to the box.” The court: “George, does that'jury look all right to you?” The defendant: “Yes, sir, I guess they will do.” At the close of the evidence the court asked the following question: “George, do you want to argue the case?” The defendant : “If I had a lawyer I would like to argue it.”

It is a constitutional right of the defendant in a criminal case to have the benefit of counsel. Art. 1, paragraph 5 of the constitution of Georgia; Civil Code (1910), § 6361. A reading of the record discloses that the defendant did not by word or conduct waive his right to the benefit of counsel. We are constrained to believe that under the facts shown the court should have appointed counsel for him. The ease of Gatlin v. State, 17 Ga. App. 406 (87 S. E. 151), is easily distinguished on its facts. The evidence in this ease was circumstantial; and it was especially important that defendant have counsel, unless there was an express waiver by him or the facts and circumstances amounted to an implied waiver.

Judgment reversed.

Broyles. G. J., and MacIntyre, J., concur.  