State v. Magrum ( 1949 )

I concur in the determination reached in the opinion prepared by Judge Burke that the judgment and sentence rendered against the defendant are void. I would point up my concurrence with these comments. Section 13 of the North Dakota Constitution guarantees to a party accused of crime the right to appear and defend in person and with counsel. Supplementing this provision the legislature has provided that, "If a defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned and must be asked if he desires the aid of counsel. If he desires, and is unable to employ, counsel, the court must assign counsel to defend him. Counsel so assigned shall serve without cost to the defendant and shall have free access to the defendant, in private, at all reasonable hours while acting as counsel for him. Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned to him by the court. Failure to assign counsel before arraignment shall not affect the validity of any proceeding in the cause if it appears that the defendant was subsequently represented by counsel, whether assigned to him or of his own choosing, and that the defendant in fact was not prejudiced by such failure." § 29-1303, Rev Code ND 1943.

This section is in effect a legislative declaration of a minimum standard which the court must follow in order to afford to the defendant his right to counsel guaranteed by Section 13 of the Constitution. The incidents leading up to his appearance before the district court on arraignment are background against which we view the proceedings before the court in order to determine whether he was afforded the opportunity to freely exercise that right. The transcript of the proceedings discloses that after the information was read to the defendant by the state's attorney the following transpired.

"By the Court: Mr. Magrum is your name correctly spelled in the information?

A. Yes.

By the Court: You have been arraigned upon an information which has been read to you, do you understand the contents thereof?

A. Yes.

By the Court: You know that you have been charged with the crime of murder in the first degree, you understand that do you?

A. Yes, sir.

By the Court: Do you also understand that you have a legal right to hire an attorney and fight this case through the courts?

A. Yes, sir.

By the Court: Do you wish to do that?

A. No, sir.

By the Court: Do you wish to plead at this time?

A. Yes, sir.

By the Court: Very well, I will ask you whether you are guilty or not guilty as charged in the information of murder in the first degree — are you guilty or not guilty?

A. I am guilty."

Under our constitution and the statute above quoted it was the duty of the court to ascertain if the defendant desired counsel, not merely to fight the case through the courts, but to determine in the first instance whether the defendant should then and there enter a plea of guilty to first degree murder. The defendant did not want to hire an attorney. For aught the record shows he may not have been financially able to do so should he have so desired. The members of his family had no opportunity to communicate with him. He was thus deprived of their assistance and advice. When the proceedings are viewed in the light of the events preceding and surrounding the arraignment which are set out at length in the main opinion, I am satisfied that the defendant was not afforded the right to counsel for which our constitution and statute provides, nor did he freely and understandingly waive that right.