State v. AllenState v. Allen
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Thе appellant was informed against for the crime of robbery, and on arraignment pleaded guilty to the charge, and was sentenced tо a term of ten years in the penitentiary. Before his sentence was carried into execution, he procured the services of сounsel, and applied to the court for a vacation of the judgment and sentence pronounced *64against him, and for leave tо withdraw his plea of guilty to the information, and to plead not guilty theretо. The application was supported by the affidavit of the aрplicant to the effect that he was not guilty of the crime charged against him, but was induced to plead guilty thereto by the officers having him in chаrge, and by the detectives who caused his arrest, who promised him that in сase he did so plead guilty he would receive a light sentence from the court. He further alleged that the officers having him in charge would nоt permit him to communicate with his friends, nor with an attorney, but were constаntly at him endeavoring to get him to enter a plea of guilty. He also аlleged that a number of persons were brought into his place of сonfinement by the county officers for the purpose of identifying him as one of the persons connected with the robbery with which he was charged, but that none of such persons did so identify him, or in any way connect him with thе commission of that crime.
The motion was based on the further fact thаt the record failed to show that the accused was informed of his right tо counsel at the time he was arraigned; the record, however, wаs subsequently amended so. as to show that, before he had entered his рlea, he was informed by the court of his right to the assistance of cоunsel and that the court would assign him counsel if he so desired. There was nо denial of the matters set out in the affidavit. The application wаs brought on for hearing before the court, and denied on April 22, 1905, whereupon this appeal was taken.
It is our judgment that the application should have been granted. It may be true that the conduct of the under-sheriffs, as shown by the affidavit, was not, of itself, sufficient toi warrant this court in reviewing the discretion of the trial court; but the record makes it plain that the court itself did not do its full duty to the accused, and these facts, taken together, lead us to the conclusion that a trial before a jury should be awarded him. The statute makes it the imperative duty of the court, when a defendant is brought before it for *65arraignment, to inform him before he is arraignеd that it is his right to have counsel, to ask him if he desires the aid of counsel, and if it appears that he does desire such aid, and if he is unable to еmploy such aid by reason of poverty, to assign him counsel. Had the court been thus explicit with the defendant here^ he might have been put uрon his guard against the wiles of the officers having access to him, and not have been led into the belief that these officers had the pоwer to control the length of the sentence the court would inflict upon him. If the defendant is guilty, it ought not to be difficult for the state to prove it to the satisfaction of a jury. But if it be true that the state is without evidence аgainst him, as his affidavit suggests, it is better that he go free than that he be convicted without due regard to the forms of law, and by practices that are at best very questionable.
The order appealed from is revеrsed, and the cause remanded, with instructions to vacate the judgment and sentence, and permit the defendant to plead further to the information.