
    (94 South. 135)
    No. 25280.
    STATE v. WHITE.
    (June 22, 1922.
    On Rehearing, Oct. 30, 1922:)
    
      (Syllabus by Editorial Staff.)
    
    1. Criminal law 4&wkey;64l (6) — Not error to order trial to proceed without counsel, where defendant did not ask appointment after withdrawal of attorney.
    Where, after defendant’s attorney was permitted to withdraw from the case, defendant protested against the appointment of an attorney and requested the cancellation of an appointment, and after withdrawal of a second attorney employed by him when the case came on for trial defendant requested no appointment and made no application for delay or continuance, or objection to proceeding with the trial, the court did not err in ordering the case to proceed without counsel, especially where the judge examined and cross-examined witnesses, and permitted defendant the privilege of doing so, and there was no illegal testimony admitted, and the case was submitted without argument.
    2. Criminal law &wkey;>9l8(10, 11) — Nonassignment of counsel not ground for new trial, in absence of hill of exceptions.
    Nonassignment of counsel cannot.be urged as a ground for new trial without a bill of exceptions seasonably taken.
    3. Criminal law <&wkey;9l2i/2 — Matters not availed of at time and presumed waived not ground for new trial.
    A new trial will not be granted for matters which accused, not having availed himself thereof at the time, is présumed to have waived.
    Baker and St. Paul, JJ., dissenting on rehearing.
    
      Appeal from Criminal District Court, Parish of Orleans; Richard A. Dowling, Judge.
    Donald P. White was convicted of grand larceny, and he appeals.
    Affirmed on rehearing.
    George P. Nosacka, of New Orleans, for appellant.
    A. Y. Coco, Atty. Gen., and R. H. Marr, Dist. Atty., and F. B. Ereeland, Asst, Dist. Atty., both of New Orleans (T. Semmes Walmsley, of New Orleans, of counsel), for the State. . .
    By Division B, composed of Justices O’NIELL, LAND, and BAKER. (The members of the Division having failed to agree upon a judgment, Justices DAWKINS and ST. PAUL were called in to take part in the decision.)
   O’NIELL,' J.

Appellant was convicted of the crime of grand larceny, and sentenced to imprisonment in the penitentiary. The only question of law presented is whether he was denied the constitutional right to have the assistance of counsel in his defense.'

Section 9 of the Bill of Rights, being article I of the Constitution, declares:

“The accused in every instance * * * shall have the right to defend himself, to have the assistance of counsel, and to have compulsory process for obtaining witnesses in his favor.”

There were similar provisions in the Bill of Rights in the previous Constitutions. Pursuant thereto, section 992 of the Revised Statutes contains this provision:

“Every person shall be allowed to make his full defense by counsel learned in the law; and the court before whom he shall be tried, or some judge thereof, shall immediately upon his request assign to him such counsel as he shall desire.”

The jurisprudence of this court maintains that the judge before whom an accused person is called for trial is not required to appoint an attorney at law to defend the party accused unless he requests it.

The complaint in this case is that the judge anticipated and forestalled such a request, because, as the minutes of the court show, “the court ordered the accused brought to trial without further delay and without an attorney.”

Appellant was arraigned on the 7th of February, 1922; that is, on the fourth day after the bill of information was filed. He was not represented by an attorney, at the arraignment, as far as the record shows. The next entry on the minutes of the court, after the arraignment, is of the proceedings had on the 17th of February, 1922. On that day, defendant’s attorney, Mr. Henifiques, announced to the court that he was no longer representing the defendant and requested that he be allowed to withdraw and have his name taken off of the record as attorney for defendant. The request was granted, and the court then appointed Mr. Conniffe, attorney at law, to represent defendant. On defendant’s request, the court immediately rescinded the appointment of Mr. Conniffe. The reason why defendant did not then want an attorney appointed to represent him, as shown by the subsequent minute entries, was that he had employed or intended to employ Mr. Moran to defend him. The next entry on the minutes is of the proceedings had on the 2d of March, 1922, when the case was called for trial. The first incident recorded in the minutes of that date was an announcement made by the presiding judge, and taken down by the stenographer, as follows:

“By the Court: The accused and Mrs. Messina phoned me, and were very indignant about a lawyer having been appointed, stating to ,me positively that they did not want an appointed lawyer; . that they wanted their own lawyer to represent them, mentioning Mr. Moran. That, on this, the 2d day of March, the case came on for trial. Mr. "Moran notified the court that he was no longer in the case, and would not have anything to do with the case. Whereupon the court ordered the accused brought to trial without further delay and without an attorney.”

The statement that, as soon as Mr. Moran announced that he had withdrawn from the case, “the court ordered the accused brought to trial without further delay and without an attorney,” leaves no doubt that defendant was denied an opportunity to request that an attorney be appointed to represent him, or to request a postponement of the trial in order that he might employ an attorney. The fact that he had not wanted an attorney appointed to represent him when he had employed or consulted an attorney of his' own choice did not justify the judge’s ordering him to trial without an attorney when the attorney whom he had employed suddenly withdrew from the' case.

After the jury had convicted him, defendant employed an attorney, who filed a motion for a new trial; which was the only remedy ever afforded him. The motion for a new trial was overruled, and the attorney reserved a bill of exceptions to the ruling. In State v. Bell, 110 La. 649, 34 South. 721, this court announced that the correct method of bringing up for review a ruling ordering an accused person to go to trial without an attorney was by a motion for a new trial, and by reserving a bill of exceptions to the overruling of the motion.

The decisions maintaining that an accused person who, preferring to defend himself, does not request that an attorney be appointed to defend him, cannot, after being convicted, complain of the failure of the judge to appoint an attorney to represent him, are not at all pertinent to this case. There is not the slightest intimation in the record that appellant was willing to go to trial without an attorney. The minutes do not even contain the stereotyped statement that the defendant announced that he was ready for trial. They contain the preamble, “The state and the defendant being ready for trial,” which statement by the minute clerk, of course, should not prevail -over the elearcut statement dictated by the judge, ordering that the defendant should go to trial without delay and without an attorney.

The judge’s reference to a phone message from Mrs. Messina, expressing indignation at his having appointed an attorney to represent the defendant, and saying “that they wanted their own lawyer to represent them.” is not explained anywhere in the record. We have had no intimation, and. have no knowledge as to who this Mrs. Messina was, or what she had to do with the case.

The verdict and sentence appealed from are annulled, and it is ordered that the case be remanded for a new trial.

LAND, J.

(dissenting). The defendant, Donald P. White, was arraigned February 7, 1922, and waá remanded to await further proceedings.

The minute entry in this case of date February 17, 1922, is as follows:

“On motion of Mr. A. D. Henriques, and on suggesting to the court that he is no longer the attorney representing the defendant in the case. It is ordered that Mr. Henriques be allowed to withdraw from this case, and his name taken off the record as attorney. On motion of the accused, and on suggesting to the court that he is unable to pay an attorney to represent him in this matter, it is ordered by the court that' Bernard Cuniffe, Esq., be appointed to represent the accused. At the request of the accused, it is ordered that the appointment of Bernard Cuniffe, Esq., herein, be annulled.” Transcript, p. 8.

On page 18 of the transcript we find the following entry:

“By the Court: The accused and Mrs. Messina phoned me, and were vehy indignant about a lawyer having been appointed, stating to me positively that they did not want an appointed lawyer; that they wanted their own lawyer to represent them, mentioning Mr. Moran. That on this, the 2d day of March, the case came on for trial. Mr. Moran notified the court that he was no longer in the ease, and would not have anything to do with the case. Whereupon the court ordered the accused brought to trial ■without further delay and without an attorney.”

The record discloses that the defendant made no request for the appointment of an attorney on March 2, 1922, before going to trial on that day, that he made no application for delay or continuance of any kind, and that he made no objection to proceeding with the trial.

He had declined and protested against the court appointing an attorney for him and had requested the cancellation of the appointment of Bernard Cuniffe, Esq., prior to the trial, although the record shows that the defendant was unable to employ an attorney. A. D. Henriques, Esq., had previously withdrawn from the case, and, before the commencement of the trial Mr. Moran notified the court that he was no longer connected with the case. As the defendant was not financially able to employ an attorney to defend him and as he had declined the appointment of an attorney by the court, the trial judge was not required by law to do anything, except to order the trial of the case to proceed,

The transcript shows that the trial judge cross-examined the state witnesses for the accused, and also examined and re-examined the defense witnesses, and that the accused also asxed the witnesses such questions as he desired to propound. Transcript, pp. 21, 22, 26-32.

It is not contended in this case that any illegal testimony was admitted against the accused or that any of his witnesses were absent. The case was submitted to the jury without argument, and a verdict of guilty of larceny was returned by the jury.

The only question of law presented on the appeal is whether the accused, under these circumstances, was denied the constitutional' right to have the assistance of counsel in his defense. In the case of State v. Perry, 48 La. Ann. 654, 19 South. 685 we said:

“Counsel claim that the defendant was deprived of his constitutional right of having counsel. Article 8 of the Constitution declares that ‘in all criminal cases the accused shall enjoy the right to have the assistance of counsel.’ Section 992 of the Revised Statutes declares ‘every person shall be allowed to make his full defense by counsel learned in the law, and the court before whom he is tried, or some judge thereof, shall immediately upon his request assign to him such counsel as he shall desire.’ The decisions of this court are to the effect that the court is not bound to assign counsel to an accused unless upon his own request, and if he fails to make the request or to apply for a continuance on the ground of absence of counsel of record, but is ready for trial, the mere fact that the trial proceeded without the aid of counsel to assist him does not constitute error or a ground on which to base a demand for a new trial.”

See, also, State v. Williams, 45 La. Ann. 938, 12 South. 932; State v. Walker, 39 La. Ann. 19, 1 South. 269; State v. Doyle, 36 La. Ann. 91; State v. Kelly, 25 La. Ann. 381; State v. De Serrant, 33 La. Ann. 980; State v. Vianna, 37 La. Ann. 606.

In the case of State v. Sims, 117 La. 1040, 42 South. 495, we said:

“The authorities are numerous to the effect that the duty of the court to appoint counsel arises only where the accused makes such a. request and is unable to employ counsel.”

The minute entry on page 2 of the transcript recites the following:

“Now comes F. B. Freeland, assistant district attorney, who prosecutes for the state, and the above defendant in person was placed! at the bar of the court, unattended by counsel; the state and the defendant being ready for trial..”

The record discloses no objection on the part of £he defendant to proceed with the trial, and, under the authorities above cited,’ it was not error for the district judge to order this case to be tried without counsel. Instead of his action being arbitrary, the record discloses that he did all in his power-to secure to the defendant a fair and impartial trial. He appointed an attorney for him at his request; he examined the witnesses for the defendant and cross-examined the witnesses for the state, and permitted the defendant the privilege of so doing. The judge a quo was powerless to force upon defendant the appointment of an attorney at the trial, as defendant had declined a'nd refused such appointment when made by the court before the trial.

The record in this case does not show that the accused asked for the appointment of counsel, and that the court refused his motion,f and that a bill was reversed. Non-assignment of counsel, without a bill of exceptions seasonably taken, cannot be urged as a ground for a new trial. State v. Malone, 37 La. Ann. 267; State v. Sims, 117 La. 1039, 1040, 42 South. 494; State v. Wells, 147 La. 824, 86 South. 268.

The principle is well settled that a new trial will not be granted for matters which the accused, not having availed himself thereof at the time, is presumed to have waived. State v. Walker, 39 La. Ann. 22, 1 South. 269; State v. Hernandez, 4 La. Ann. 379; State v. Price, 6 La. Ann. 691; State v. Benjamin, 7 La. Ann. 47; State v. Maxent, 10 La. Ann. 723.

In the case of the State v. Charles, 130 La. 685, 58 South. 510, we said:

“An accused cannot be permitted to remain supinely, indifferent about having counsel, take his chances of acquittal, and, after verdict, successfully urge that he was entitled to counsel.”

See, also, State v. Walker, 39 La. Ann. 19, 1 South. 269.

I therefore respectfully dissent from the opinion of the majority in this case, as it is the conclusion of the writer of this opinion that the record discloses no reversible error, and that the judgment appealed from should be affirmed.

On Rehearing.

By the WHOLE COURT.

DAWKINS, .1.

A further ■ consideration of this case convinces us that the views expressed in the dissenting opinion handed down by Mr. Justice LAND herein are sustained by the law and jurisprudence of this court. Therefore, for the reasons therein assigned, our former decree is set aside, the views expressed in said dissenting opinion are adopted as the conclusion of this court, and the verdict and sentence appealed from are affirmed.

BAKER and ST. PAUL, JJ., dissent.

O’NIELL, J., was absent from the state when the case was argued and decided on rehearing.  