(Syllabus.)

1. Trial — Court's Duty to See that Fair and Impartial Trial is

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Had. Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.

2. Arraignment and Pleas — Requisite Conditions for Acceptance of Plea of Guilty. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and consequences of his plea.

3. Trial — Constitutional Right to be Heard by Counsel at Every Stage of Proceedings. The constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the time of the trial. Every person accused of felony is entitled to the benefit of counsel at every stage of the proceeding, whether imprisoned or admitted to bail.

4. Trial — Constitutional Right to List of Witnesses in Capital Case. The Bill of Rights (Const. art. 2, § 20) provides that, "in capital cases, at least two days before the case is called for trial, he [the accused] shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses."

Held, that under this provision of the Constitution the defendant in a capital case does not have to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with, unless the defendant has waived this right.

Appeal from District Court, Hughes County; Geo. C. Crump, Judge.

Farmon Sutton was convicted of murder, and he appeals. Reversed and remanded, with instructions.

On the night of December 30, 1925, J.H. Byerly was shot and killed in his store in Hughes county, north of Holdenville. On the 4th day of January, 1926, Farmon Sutton, a negro, was arrested at his home about two miles from the scene of the homicide and was held in

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jail at Holdenville until February 4, 1926, when he was taken to the office of the county attorney, and there signed a written confession. Immediately a complaint was filed before G.A. Hollaway, a justice of the peace, who was called to the office of the county attorney, and there before him the defendant waived preliminary examination, and was held to the district court. About an hour later the defendant was taken from the county attorney's office to the district court. He was there served with a copy of the information and a list of the state's witnesses with their post office addresses; thereupon he was formally arraigned, and the court recessed until 1 p.m.

The following proceedings thereupon followed:

"By Judge Crump: This morning you were arraigned by having read to you the information, charging you with the crime of murder. The court at that time passed the cause until 1 o'clock to hear your plea. Do you wish to plead at this time A. (By the defendant, Farmon Sutton). A. Sir?

"Q. (By the Court). Do you wish to enter your plea at this time? Do you want to plead at this time? A. Who, me?

"Q. Yes. A. I don't know, sir.

"Q. Do you want to plead guilty or not guilty? A. Plead guilty, Judge.

"Q. Now, before you definitely decide to plead guilty, there is only two punishments that may be inflicted for murder; one death and one life imprisonment in the penitentiary, at hard labor. Now I want you to think well before you enter your plea of guilty? A. Well, I pleads guilty.

"Q. You will plead guilty? How old are you? A. I am 31.

"Q. Thirty-one years old? Are you married? A. Yes, sir.

"Q. Your wife living? A. Yes, sir.

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"Q. Any children? A. No, sir.

"Q. No children? Are you and your wife living together? A. Yes, sir.

"Q. Where does your wife live? A. She lives out north. We lives together out north here.

"Q. What is your business? A. Farming.

"Q. Have you ever been in trouble before? A. No, sir.

"Q. Mother living? A. Sir?

"Q. Mother living? A. Yes, sir.

"Q. Father living? A. Yes, sir.

"Q. Now, you have pleaded guilty to the crime of murder. Have you anything to say why sentence of the law should not be pronounced upon you at this time? A. No, sir.

"Q. Has the county attorney any recommendation to make? A. (By Mr. Fancher, county attorney). Yes, sir; for the information of the court in assessing the punishment, which I think in this case doesn't deserve any leniency I desire to introduce this statement and confession the defendant made in the presence of witnesses this morning. I would like to have it marked State's Exhibit A and introduce it as part of the record in this case, so the court may be informed as to the nature of offense.

"By the Court: All right; have the court reporter mark it Exhibit A. Just read it, so he can hear it. (Whereupon the county attorney reads said Exhibit A to the defendant, being his signed statement.)

"By the Court: Farmon, you heard the statement read to you? A. Yes, sir.

"Q. Did you sign it? A. Yes, sir.

"Q. Does that speak the truth? A. Yes, sir.

"Q. Does the statement read by the county attorney speak the truth? A. Yes, sir.

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"By the Court: Let the record show that it will be the judgment of the law as pronounced by the court that the defendant will be adjudged to be guilty of murder and shall suffer death by electrocution, and that the 9th day of April, 1926, is the day appointed by the court for the carrying into execution the judgment and sentence of death, as herein pronounced.

"By the Defendant: I can't understand you, judge.

"By the Court: So you may appeal from the judgment and sentence to the Criminal Court of Appeals. Do you hear it now? A. Yes, sir.

"Q. Did you hear what I said, and understand it? A. No, sir; I didn't understand.

"Q. (By the Court). It will be the judgment of the law as pronounced by the court that for the crime committed to which you have plead guilty that you shall suffer death by electrocution.

"By the defendant: Yes, sir.

"By the Court: And that the 9th day of April, 1926 —

"By the Defendant: Yes, sir.

"By the Court: — is the day fixed and appointed by this court —

"By the Defendant: Yes, sir.

"By the Court: — that the judgment and sentence of this court shall be carried into execution.

"By the Defendant: Yes, sir.

"By the Court: And that you will be delivered to the sheriff of this county —

"By the Defendant: Yes, sir.

"By the Court: — and by him safely kept, who shall deliver the defendant to the warden of the state penitentiary, W.S. Key, of South McAlester, Okla., who shall execute the warrant of death?

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"By the Defendant: Yes, sir.

"By the Court: By killing you by electrocution?

"By the Defendant: Yes, sir.

"By the Court: And that the day of sentence of death shall be on the 9th day of April, 1926. And from this judgment and sentence you have a right to appeal to the Criminal Court of Appeals, and it is the duty of this court to inform you of this right.

"By the Defendant: Yes, sir.

"By the Court: And that as by law required that a transcript of this proceeding shall be made and sent to the Governor of this state for his review —

"By the Defendant: Yes, sir.

"By the Court: — of my decision, and that he may submit it to the judges of the Criminal Court of Appeals to see whether or not —

"By the Defendant: Yes, sir.

"By the Court: — the death sentence pronounced in this case is in due and ancient form and pronounced by the court according to law.

"By the Defendant: Yes, sir.

"By the Court: Take him out."

On the 6th day of February, motion to vacate the judgment was filed on the following grounds:

"I. Defendant states that he was confined in the county jail of Hughes county, Okla., for some 30 days before any information or complaint was filed against him; that during said time he was not permitted to see any visitors, friends, relatives, or attorneys, and was repeatedly and consistently questioned by the sheriff and his deputies, and the county attorney, and confronted with statement after statement that he is supposed to have made, which, in fact, he did not make, and other statements as to evidence found, which was

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untrue, and continually reminded that he was guilty and the best thing for him to do was to plead guilty.

"II. Defendant further states that through undue pressure exercised upon him by the officers of Hughes county, during his confinement in the county jail in Holdenville, he was induced to plead guilty to the crime of murder, without being advised as to his legal rights, and that said confession and plea of guilty was obtained from him through the exercise of undue influence upon him by said officers.

"III. Defendant further states that he was not given an opportunity to have a preliminary hearing, and was not advised as to his rights to such a hearing. Then when arraigned in the district court of Hughes county he was not advised by the court as to his right to representation by counsel and to his right to have counsel appointed to represent him by the court if he was unable to employ counsel.

"IV. Defendant states that he was not served with a list of witnesses that were to be used in chief against him at least 2 days before his case was called to trial, and before he was called upon to enter his plea of guilty in this cause; that he was not advised of his rights with respect thereto; that a list of witnesses was served on him at 9 o'clock on the 4th of February, 1926, at which time the information was read to him and his case then set for plea at 1 o'clock on said day; that at that time the court did not advise him of his rights as to appointment of counsel; that he was never at that time allowed to converse with friends, relatives, or attorneys, and was constantly in the hands of the officers; and that the court did not appoint counsel to represent him, or advise him as to his rights.

"V. Defendant states that, in pursuance to the order of the court heretofore mentioned, he was brought into court at 1 o'clock on said date, at which time he was asked to enter his plea of guilty; that he had, prior to that time, been advised by the officers that the best thing to do was to plead guilty; that

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they had sufficient evidence to convict him no matter what he did; that he would get the electric chair and that if he pleaded guilty that it would be better for him; that he was not at that time given counsel to advise him, or allowed to talk to his relatives, or advised as to his rights in the premises, but that he was immediately sentenced to death in the electric chair, and within the hour started to the state penitentiary at McAlester.

"VI. The defendant further states that he is a negro, 30 years of age; has lived on the farm all his life; was never arrested for any crime before this time; and that he is innocent of the charge of murder, for which he was sentenced.

"VII. Defendant states that if allowed to do so he can submit proof of the statements contained herein, and desires to do so upon the hearing of this motion.

"Wherefore, premises considered, the defendant prays that this motion be set down for hearing; that upon the hearing to be permitted to introduce evidence in support of the allegations herein contained; that upon final hearing the judgment be set aside, and that defendant be permitted to withdraw his plea of guilty and substitute a plea of not guilty instead, and that said judgment heretofore entered be vacated, set aside, and held for naught, and that he be granted a new trial after reasonable time for preparation.

"Anglin & Stevenson.

"State of Oklahoma, County of Hughes, ss.:

"Alfred Stevenson, of lawful age, being duly sworn, on oath states that he is one of the attorneys for the defendant herein; that the defendant is at this time confined in the state penitentiary at McAlester, Okla.; that the facts set out in the foregoing motion are within his knowledge; and that said facts as stated herein are true. Alfred Stevenson."

The motion is supported by the affidavit of defendant to the effect that on January 4, 1926, he was

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placed in jail and that several persons talked to him, making threats that he would be lynched unless he told about the killing; that four or five days before he was taken to court another negro known as "Black Diamond" was placed in his cell with him; that this negro told him that they were going to lynch him, that the best thing to do was to confess, and that if he did not confess he would be taken out to the place where the murder occurred and would be burned at the stake; that his wife, his brother, and sisters and other relatives came to the jail to see him, and only one of the sisters was admitted into the jail; that when she asked him about the killing she was told not to talk about the case. His affidavit concludes as follows:

"Affiant further states that immediately he was placed in a car and taken to McAlester, and has been in the penitentiary ever since.

"Affiant states that he is not guilty of the charge; that he was never arrested before in his life; that he is about 30 years of age; that he is a farmer, has lived on a farm all of his life; was born in the state of Texas on a farm; that he never hung around town; knew nothing about court and was never even a witness in a case in his life; that the night Mr. Byerly was killed he stayed all night and sat up a good part of the night with sick people; that there were several people there; that he was not around the store of Mr. Byerly that night; that he worked all that week on the farm helping his father, and never had any idea that he was suspicioned of the murder until the officers came to his house and arrested him, and that affiant on the trial of the case can easily prove his innocence, and that he has been informed that the officers have repeatedly stated that there were no corroborating circumstances connecting this affiant with the crime, and that if it had not been for the purported confession he would have been released from jail within a day or two.

"Affiant states that he has been informed that the

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officers immediately released Black Diamond as soon as this affiant was taken to the penitentiary."

And supported also by the affidavits of L.C. Spencer, Alzora Spencer, Mayetta Spencer, and Albert and Susie Sutton, his parents, and Robert Jones, his uncle.

Motion to vacate and set aside the judgment and for leave to withdraw the plea of guilty and enter a plea of not guilty came on for hearing on the 15th of June, 1926. In opposing said motion the state called only one witness, Sam B. Turner, sheriff, who testified that, if there was any inducement held out to the defendant to make a confession, he did not know it; that he himself did not make any threats or try to persuade or make any promise to the defendant for any confession; that no lawyer asked to see the defendant while he was in jail.

When the state rested, the court ruled:

"Motion to set aside the judgment and sentence and recall the death warrant overruled."

Exception allowed.

Anglin & Stevenson, for plaintiff in error.

The Attorney General and Tom H. Fancher, Co. Atty., for the State.

DOYLE, J. (after stating the facts as above). This appeal is from a judgment of conviction of murder and sentence of death, pronounced upon a plea of guilty, entered by appellant, Farmon Sutton, upon his arraignment on an information charging him with the murder of J.H. Byerly, alleged to have been committed December 30, 1925.

It appears from the record that appellant was arrested January 4, 1926, on suspicion, and was held in jail until February 4th, when he was taken to the

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office of the county attorney and there signed a written confession; immediately complaint was filed before a justice of the peace who was called to the office of the county attorney, and there before him appellant waived preliminary examination and an hour later was taken before the district court. In the meantime an information was filed in the district court and appellant was there served with a copy of the same, together with a list of the state's witnesses. He was then formally arraigned and the court recessed until 1 p.m., at which time appellant pleaded guilty to the charge, and was, by the judgment of the court, sentenced to suffer death by electrocution on the 9th day of April, 1926. During these proceedings the defendant was not represented by council, nor was he informed by the court of his right to be represented by counsel. Immediately after the judgment was rendered appellant was placed in a car and taken to the penitentiary.

The motion to vacate and set aside the judgment and for leave to withdraw the plea of guilty and enter a plea of not guilty was filed February 6th, the second day after the judgment was pronounced. On the hearing this motion was by the court overruled. Exception reserved.

To reverse the conviction, appellant assigns as grounds that the judgment of conviction is void for want of due process of law, as secured to him by the Constitution of the state (article 2, § 7). which reads:

"No person shall be deprived of life, liberty, or property, without due process of law."

The principle that no person shall be deprived of life, liberty, or property, except by due process of law, is older than written Constitutions. The phrase

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"due process of law" as used in the Bill of Rights is synonymous with the phrase "law of the land" as found in Magna Charta. A definition of the meaning of the words "law of the land" and "due process of law" which has received the sanction of the courts is Mr. Webster's familiar definition. By the law of the land is clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. It means that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial — that is, a trial in accordance with the rules of law and the principles of justice; and it is a duty resting upon the courts to see that this guaranty conferred by the Constitution upon every citizen is upheld and sustained. Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. The Bill of Rights provides that in all criminal prosecutions the accused —

"shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses." Const. art. 2, sec. 20.

The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases.

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Says Mr. Cooley:

"With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel." Const. Lim. 334.

In order that the accused may have the full benefit of this constitutional right, the Code of Criminal Procedure provides:

"If the defendant appear 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 desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him." Section 2590, C.S. 1921.

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, it was held:

"Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety."

And see Tipton v. State, 30 Okla. Cr., 56, 235 P. 259.

Construing the second provision of section 20 of the Bill of Rights, above quoted, the uniform holding of this court is that, in a capital case, the defendant does not have to demand a list of the witnesses, together with their post office addresses; that the Constitution makes that demand for him, and, unless he waives it, he cannot be legally put upon trial until that demand has been complied with. Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Polk v. State, 26 Okla. Cr. 283, 224 P. 194.

The uniform holding of the courts is that, in a capital case, a plea of guilty can only be entered after

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the defendant has been fully advised by the court of his rights and the consequences of his plea; and, where it appears on appeal from a judgment of conviction that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial. Howington v. State, 30 Okla. Cr. 243, 235 P. 931; Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.

In the instant case, it appears that upon his arraignment there was no attempt whatever on the part of the court to inform the defendant of his constitutional and statutory rights. The record shows the following colloquy occurred between him and the court:

"Court: Do you wish to enter your plea at this time?

"Defendant: Who, me?

"Court: Yes.

"Defendant: I don't know, sir.

"Court: Do you want to plead guilty or not guilty?

"Defendant: Plead guilty, judge.

"Court: Now, before you definitely decide to plead guilty, there is only two punishments that may be inflicted for murder, one death, and one life imprisonment in the penitentiary at hard labor. Now, I want you to think well before you enter your plea of guilty?

"Defendant: Well, I pleads guilty.

"Court: Let the record show that it will be the judgment of the law as pronounced by the court that the defendant will be adjudged to be guilty of murder and shall suffer death by electrocution, and that the 9th day of April, 1926, is the day appointed by

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the court for the carrying into execution the judgment and sentence of death as herein pronounced.

"Defendant: I can't understand you, judge.

"Court: So you may appeal from the judgment and sentence to the Criminal Court of Appeals. Do you hear it now? A. Yes, sir.

"Q. Did you hear what I said, and understand it? A. No, sir; I didn't understand."

In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law. The plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In some states pleas of guilty to the charge of murder are not received; in others on a plea of guilty the case must stand continued for judgment and sentence. In still others a jury must be impaneled in capital cases to assess the punishment. Polk v. State, supra. Here there was no attempt whatever on the part of the court to inform the defendant of his rights, or to state the effect of the plea of guilty.

It is true that many constitutional guaranties may be waived by an accused person who comes into court represented by counsel and being fully advised of all his rights, and in such cases it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except insofar as his plea of guilty waived his right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses,

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together with their post office addresses, are essential to due process of law guaranteed to the citizen by section 7, Bill of Rights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law.

As, in the view we take, the case must be submitted to a jury, we refrain from a discussion as to whether or not the purported confession was or was not free and voluntary, further than to say it is as much the duty of prosecuting attorneys to see that a person accused of crime is not deprived of any of his constitutional and statutory rights as it is to prosecute him for the crime with which he is charged.

While promptness in the apprehension and trial of persons accused of crime is commendable, the law has provided how trials should be had, and the enforcement of law is to be arrived at only by adhering to legal requirements and principles of justice and fair trials as provided by constitutional provisions, legislative enactment, and well-established rules of law.

It has been well said that the law is not designed to be a swift engine of oppression and vengeance, but it was and is designed to try and convict men only after due hearing and a fair trial.

For the reasons stated, we are of the opinion that the judgment of conviction is void for want of due process of law.

The judgment is accordingly reversed; the cause remanded to the court below for further proceedings in conformity with law.

BESSEY, P.J., and EDWARDS, J., concur.