Summary
reversing and remanding for new trial partly because the prosecutor made references to facts not on the record, including, but not limited to, references to a gun used to commit the crime when there was no evidence of a gun on the record
Summary of this case from Ross v. StateOpinion
No. 36209.
December 9, 1946.
1. CRIMINAL LAW.
In prosecution for robbery by exhibition of deadly weapon, a pistol which was procured by defendant's confederate after robbery and was not at scene thereof nor taken as part of stolen property, with which it was found in such confederate's home was properly excluded (Code 1942, sec. 2367).
2. CRIMINAL LAW.
In prosecution for robbery by exhibition of deadly weapon where death penalty was inflicted, district attorney's remarks in argument to jury respecting prison terms and pardons in other cases, were improper, in absence of proof of facts recited (Code 1942, sec. 2367).
3. CRIMINAL LAW.
The district attorney's statement in argument to jury that a pistol, properly excluded from evidence in prosecution for robbery by exhibition of deadly weapon, was found with cigarettes, taken in robbery, at home of defendant's confederate, was improper, where such pistol was not at scene of crime, nor taken from victim, and evidence showed that weapon used in robbery was a dirk knife (Code 1942, sec. 2367).
4. CRIMINAL LAW.
It is common knowledge that weapon usually used in committing robbery by exhibition of deadly weapon is a pistol or some firearm (Code 1942, sec. 2367).
5. CRIMINAL LAW.
In prosecution for robbery by exhibition of deadly weapon, police officer's testimony that defendant told witness that defendant and his confederates, two or three days before robbery, hired a taxi in distant city and, when driver stopped at their request told him it was a "stick-up," was incompetent as tending to show defendant's commission of another crime distant from, and having no relation to, or causal connection with, crime charged (Code 1942, sec. 2367).
6. CRIMINAL LAW.
Where there was no question of defendant's guilt of alleged robbery by exhibition of deadly weapon, shown to be a dirk knife, but only real question was extent of punishment, and jury sentenced him to death, district attorney's statements in argument that jury should impose such sentence because defendant, if sentenced to penitentiary, would shortly be pardoned or sentence suspended, that he used a pistol in robbery, and that he engaged in a holdup a few days before crime charged, constituted reversible errors, in absence of exaggerating elements calling for extreme penalty (Code 1942, sec. 2367).
7. CRIMINAL LAW.
Arraignment of one indicted for capital crime of robbery by exhibition of deadly weapon before court's appointment of counsel to represent him was not prejudicial error warranting reversal of conviction and sentence to death, where court refused to accept plea of guilty, entered plea of not guilty, and appointed counsel for defendant on next day, district attorney offered to allow defendant to withdraw his plea and to rearraign him, counsel so appointed were permitted to move to quash indictment and demurred thereto after overruling of such motion, and special venire was granted after overruling of demurrer (Code 1942, secs. 2367, 2505).
8. CRIMINAL LAW.
Denial of petition by one of two attorneys, appointed to represent defendant charged with capital crime of robbery by exhibition of deadly weapon, to be relieved of such duty and responsibility because of his close business, professional and personal relations of robbery victim, was not error, where defendant was protected in all his legal rights by such attorneys so far as possible (Code 1942, secs. 2367, 2505).
APPEAL from the circuit court of Copiah county. HON. J.F. GUYNES, J.
John T. Armstrong and Lena C. Zama, both of Hazlehurst, for appellant.
The district attorney committed fatal error in his argument to the jury in discussing pardons and suspensions and referring to the pistol that had been excluded.
Magee v. State, 198 Miss. 642, 22 So.2d 245; Abney v. State, 123 Miss. 546, 86 So. 341; Hartfield v. State, 186 Miss. 75, 189 So. 530; Story v. State, 133 Miss. 476, 97 So. 806; State v. Johnson, 151 La. 625, 92 So. 139; State v. Henry, 196 La. 217, 198 So. 910.
The court erred in permitting testimony over the objection of the defendant to be brought in from the witness, P.C. Woods, as to this defendant participating in a stick-up and the stealing of a taxi in New Orleans several days prior to the time of said robbery, for which he was tried and convicted and given the death penalty.
Raines v. State, 81 Miss. 489, 33 So. 19; Collier v. State, 106 Miss. 613, 64 So. 373; Baygents v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 159, 116 So. 533; Willoughby v. State, 154 Miss. 653, 122 So. 757; Whitlock v. State (Miss.), 6 So. 237; Floyd v. State, 166 Miss. 15, 148 So. 226; Irby v. State, 186 Miss. 161, 185 So. 812; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Magee v. State, supra; 22 C.J.S. 1084, Sec. 682; 20 Am. Jur. 287, Sec. 309.
The court erred in permitting the introduction in evidence of the pistol found several days after the robbery at the Addie May Armtsrong house, over the objection of the appellant, and then after the pistol had been before the jury for almost a day, and toward the conclusion of the trial, the court excluded same.
Warren v. State, 174 Miss. 63, 164 So. 234.
The rights of the appellant were prejudiced by a newspaper being purchased by one of the jurors at breakfast on the last day of the trial and which said newspaper was before the jury the whole day, and which said newspaper had in sub-headlines on the front page an article about a negro race riot in Columbia, Tennessee.
The court erred in permitting appellant to be arraigned prior to the time he was supplied with appointed counsel.
Robinson v. State, 178 Miss. 568, 173 So. 451; Code of 1942, Sec. 2505.
The rights of the appellant were prejudiced by the refusal of the court to excuse John T. Armstrong as attorney and to appoint another attorney to defend said appellant.
State v. Jones, 154 La. 1074, 142 So. 693; Code of 1942, Sec. 2505; 23 C.J.S. 325, Sec. 982.
Taking all the assignments previously considered, most of which would not constitute reversible error if standing alone, they indicate the disadvantage the appellant was under in standing his trial. It may be in certain cases that there are many things for which the court would not reverse alone, which taken together constitute such a pressing obstruction to a fair trial that the court would not say with confidence that the trial had been fair, and wherever such is the case, and this is one of that character, the errors cannot be lightly passed over, especially serious errors for which a new trial should be granted.
Lee v. State, 160 Miss. 618, 134 So. 185.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant's first point is that the district attorney committed fatal error in discussing pardons and suspensions and referring to the pistol that had been excluded. Appellant says under this point, among other things, that this is a case where the innocence of the appellant is not at issue. The only question involved was the degree of punishment which the jury could fix. This statute gives to the jury the right, and to the jury alone the right, to say whether the death penalty should be inflicted. The jury has the discretion to fix a death penalty where the robbery is by the use of deadly weapons; consequently, it was permissible for the attorneys on either side to make arguments to the jury to influence them as to whether or not the death penalty would be inflicted. In ordinary cases the jury has nothing to do with the penalty, and should not be told in such cases what the penalty would be, that being the function in ordinary cases of the trial judge; but in a number of instances the jury is given the right and power to fix the penalty; and, while the jury alone has the power in this case to fix it, both the State and defendant may argue to the jury concerning the penalty that should be fixed, if they desire so to do.
The district attorney's reference to the pistol was harmless error, if error at all, because the pistol had been testified to, and although the judge erroneously excluded the pistol from evidence, he did not exclude the evidence that the pistol was actually there with the cigarettes and that the pistol that was there was not Mr. Coen's pistol. The testimony of Mr. Coen that he was threatened with being shot if he moved is sufficient to show that a pistol was actually used during the robbery, and that the story about a cap pistol was not plausible enough to deceive a jury composed of men of good intelligence, sound judgment and fair character; therefore, there was no error in the district attorney's argument because he had a right to reply to argument made by the attorney for appellant that it was a cap pistol instead of a real pistol.
The second point in defendant's argument is that the court erred in permitting testimony, over the objection of the defendant, of the witness, Phil Woods, as to defendant participating in a stick-up and the stealing of a taxi in New Orleans several days prior to the said robbery. There is nothing except the language, "This is a stick-up," that could give rise to any inference at all. The record does not show there was a robbery in New Orleans, and the language, a stick-up, does not necessarily refer to a robbery. The remark may be made in a jocular way and, no doubt, is made in many practical jokes. Furthermore, when the defendant testified that he did participate in the robbery of Mr. Coen there could be no error which would cause a reversal because the offense for which he was tried, or at least one offense embraced in the indictment, was admitted, and the remark of Mr. Woods as to what the defendant stated would be harmless, but it was not completed and nothing was admitted to show the hold-up of the taxi driver in New Orleans.
The third point in appellant's brief is that the court erred in permitting the introduction of the pistol found several days after the robbery at Addie May Armstrong's house over the objection of appellant, and then after the pistol had been before the jury for almost a day, and towards the conclusion of the trial, the court excluded it. It was shown clearly that the appellant and his co-indictees had used the pistol, and the pistol was found with the goods which they took from the store, which pistol did not belong to Mr. Coen; the defendant and his co-indictees having taken a Colt pistol from Mr. Coen's store. It was important testimony, and should not have been excluded because it was not necessary to identify the pistol actually used. Any pistol would suffice. The indictment did not undertake to describe the pistol nor was the State required to identify it, but the trial judge, through caution, excluded it from the evidence, and I think it should have remained in evidence and no reversal should be had for this reason. The point is entirely without merit in my opinion.
Point four is that the rights of the appellant were prejudiced by a newspaper being purchased by one of the jurors at breakfast on the last day of the trial, which said paper was before the jury the whole day, and which newspaper had sub-headlines on the front page about a negro race riot in Columbia, Tennessee. The race riot at Columbia, Tennessee, whatever the report of the paper may have indicated, did not relate to the trial, and jurors must be presumed to be men of good intelligence, sound judgment and fair character; and such men would not permit an outside occurrence of any nature to influence their verdict in a trial in which they had taken a solemn oath to render a verdict according to the law and evidence in the case and not from any other source. I do not see how this would influence the jury at all in deliberating in the present case. The Tennessee transaction was far removed from the scene of the trial, and no person would inject an occurence of that kind into the trial of the particular case where none of the parties involved in the Tennessee trouble were present or interested. I submit there is no reversal for this cause.
Point five of appellant's brief is that the court erred in permitting appellant to be arraigned prior to the assignment or appointment of counsel to represent him. The customary method is to arraign a defendant and see if he desires a trial. If he pleads guilty, the court may accept the plea and no trial be had. It is true that, under Section 2505 of the Code of 1942, the accused should have counsel assigned where he is indicted for a felony before he is required to plead so that he may be advised of the nature of the accusation, and whether the facts in the arraigned person's mind or knowledge would constitute a defense to the charge made by the State. The district attorney offered to have the defendant rearraigned and give him an opportunity to present any matter to the court that would be affected by the charge or the facts in relation thereto, but the attorney for appellant declined to have this done, and we must look at the case in the light of all the facts developed. When we do so, we find nothing that could have been asserted as a reason for not being arraigned or why the appellant could not be tried under the charge in the indictment. Appellant, in fact, moved to quash the indictment; and, when that was overruled, he demurred to the indictment, and then procured a special venire facias and had all the rights accorded him which the law gives him and privileged to raise any question affecting his rights in any respect.
Point six is that appellant was prejudiced in his rights by the refusal of the court to excuse John T. Armstrong, appointed attorney for appellant, and appoint another to defend appellant. Nothing was shown that could legally affect the capacity of Mr. Armstrong to give the defendant a proper defense. He was a strong friend of Mr. Coen, and of some other parties mentioned in the evidence, but Mr. Coen testified that the defense of the appellant by Mr. Armstrong would in no manner affect his friendship for Mr. Armstrong, and the court found that there was no reason why Mr. Armstrong could not conscientiously and ably defend the appellant in all of his rights and privileges regardless of such friendship. There is no fact in evidence that would show that the rights of appellant were in any manner prejudiced nor does the record reflect any kind of failure or neglect on the part of Mr. Armstrong to do his full duty, and he certainly has raised every point that could be legally raised in behalf of appellant so far as I can see from the record.
It is not necessary to discuss the question as to whether the board of supervisors and the circuit clerk, in making up the jurors of the county, made any intentional discrimination against appellant or any member of the negro race, for their testimony shows that only one negro had qualified for jury service by becoming an elector by registering, as required by Section 264 of the State Constitution. That section provides that only qualified electors, able to read and write, shall be qualified jurors. The evidence shows that no negro, other than the one shown to be a registered voter, had ever applied to the circuit clerk, who is county registrar, to be registered as a voter. There is no law on the books of Mississippi that requires any person to register and vote. They have the privilege, as every person has, of refusing to take part in elections or to qualify themselves for that purpose.
Argued orally by John T. Armstrong, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant and Virgil Smith and Howard White were jointly indicted under Section 2367, Code 1942, for robbery of C.C. Coen by the exhibition of a deadly weapon. Appellant was granted a severance; was convicted as charged and the verdict of the jury sentenced him to death.
On this appeal, he assigns and argues many alleged errors. We will consider and decide three of them which we think call for a reversal and remand of the case, and will then pass upon such others as will necessarily, or likely, arise in a new trial.
The diligent district attorney, in his closing argument to the jury, said: "That he had seen or known of one man who had been tried for five different murders because the jurors followed the course of least resistance and turned him loose on the others; that he had seen people go to the penitentiary for five or six year terms, then come out to commit other crimes, and that unless a stern verdict was rendered in this case it would not stop crime, and that people who were sent to the penitentiary were given a pardon or suspension."
Counsel for the defendant immediately objected to this argument and asked for a mistrial because thereof. The trial judge said: "Gentlemen, you have nothing to do with pardons or suspensions," and overruled the motion for a mistrial.
Cigarettes were a part of the property taken in the robbery. These were found by the officers several days later in a locked box in the home of the mother of Smith, a confederate. With them was found a 38 Iver Johnson Pistol. Smith had procured that pistol in New Orleans after the robbery. It was not at the scene of the robbery and was not taken as a part of the property. Coen did not own it. In fact, the proof shows without dispute that the only pistol used in the robbery was a cap, or toy pistol. Mr. Coen testified he saw no pistol of any kind. The Iver Johnson Pistol was first admitted in evidence. Later, it was excluded. The latter ruling was correct. However, in his closing argument the district attorney said "They come in here and ask for you not to send this defendant to the chair, because a cap pistol was used, but, gentlemen of the jury, we find the cigarettes and on top of those cigarettes what do we find? This pistol." And, he then reached to the table and asked where the pistol was, meaning the pistol which had been excluded. Counsel for defendant objected and asked for a mistrial. The court instructed the jury to disregard the statement that this was the pistol ". . . used on the night of the robbery; that there was no testimony identifying this as the same pistol," and then overruled the motion for a mistrial.
The third question arose under these conditions: The crime occurred Monday night about eight o'clock. The following Friday, appellant was arrested in New Orleans. The officer in charge of appellant testified to a confession made to him as they returned to Mississippi. In the course of his testimony he said appellant told him that two or three days before the robbery appellant and his confederates hired a taxi in New Orleans ". . . to take them out to some street . . . I forgot the name of the street . . . and they told him they wanted to stop, and when he stopped they told him it was a stick-up." Appellant objected to this line of testimony, and the objection was overruled before the witness got to the quoted statement. Immediately after the quoted statement was made, appellant objected and moved for a mistrial, especially because of the use of the word "stick-up." The objection was overruled, the trial judge admonishing the witness to "Confine your testimony to this offense."
The facts in this case are somewhat unusual. When Augustine was arraigned, he had no counsel and he undertook to plead guilty. The trial judge refused to accept that plea, whereupon a plea of not guilty was entered. On the trial of the case, the State introduced a number of witnesses to whom appellant had voluntarily confessed that he participated in the robbery. He himself took the stand as a witness on the trial and frankly stated his part in the robbery. The only real question before the jury was the extent of the punishment, said section providing that one convicted thereunder "shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years."
We will deal with the remarks about suspensions and pardons. In Magee v. State, 198 Miss. 642, 22 So.2d 245, 248, this Court said: "The question is not merely whether the jury may have found the defendant guilty of murder in the instant case . . . but also whether such proof may have influenced the jury to fix the death penalty as his punishment."
In Abney v. State, 123 Miss. 546, 86 So. 341, the district attorney, in urging the jury to return a verdict of murder instead of manslaughter, referring to the lighter punishment for manslaughter, said: "The maximum penalty is 20 years in the state penitentiary and the minimum penalty is absolutely in the discretion of the court." This Court held that these remarks constituted reversible error.
In Hartfield v. State, 186 Miss. 75, 189 So. 530, 532, the district attorney urged the jury to return a verdict of murder in such form as that it would necessarily carry the death penalty instead of a verdict for manslaughter or life sentence in the penitentiary, "Because he is already there under a life sentence, and anything less than the death penalty would not be any punishment in this case." The Court held this argument to be in error.
In Minor v. State, 101 Miss. 107, 57 So. 548, the Court held that it was reversible error for the prosecuting attorney, on a charge of murder, to say to the jury "If you bring in a verdict of manslaughter, the court does not have to sentence her to the penitentiary, but can fine her or send her to the county farm."
Likewise, in Windham v. State, 91 Miss. 845, 45 So. 861, the Court held it was error for the prosecuting attorney, where the defendant was being tried for murder, to urge in his argument to the jury that the judge could, in his discretion, punish the defendant, if convicted of manslaughter, either by fine or imprisonment in the county jail, or for a term of years in the penitentiary.
In State v. Johnson, 151 La. 625, 92 So. 139, 142, the prosecuting attorney in his closing argument said: "That the evidence in this case demands the death penalty, and while the law authorizes the jury to return a verdict of guilty as charged, without capital punishment, which would call for the sentence of life imprisonment in the penitentiary, this law is a farce, or rather a fiction of the law. It does not mean what it says. It only means that the defendant would be sentenced to serve his natural lifetime in the penitentiary, and history shows that, after a short period of time, say 5, 10 or 15 years, he would be turned loose again on society." The Louisiana Court, in responding to that argument, used this language: ". . . The district attorney should refrain from bringing to bear upon the jury his personal and official opinion that, by reason of an unwise (in his opinion) parole system, there was no life imprisonment in this state, and which argument could have no other purpose than to influence the jury in favor of an unqualified verdict. Simply because the law-making power of the state has seen proper, in the exercise of its wisdom, to create a pardoning board, and to establish a system of parole, and just because under that system, a life termer is occasionally pardoned or paroled, furnishes no sufficient reason in law for an appeal to the jury to disregard the statute which vests in them the discretionary power to qualify the verdict, and to treat that law as a farce and utterly without any meaning whatever."
In the case of State v. Henry, 196 La. 217, 198 So. 910, 923, the prosecuting attorney, after reciting to the jury his personal knowledge of cases where pardons had been granted, used this language: ". . . As I was saying when interrupted you all know as well as I do that life imprisonment does not mean that. I am giving you an example of it, and you all no doubt know of many others. Through the functioning of our Parole Board and Boards of Pardon, and politicians, principally, particularly in Louisiana. I am not criticizing those laws, they are good in some cases, but gentlemen of the jury these Boards do not have the opportunity to pass on the facts of the case like you do. So we can eliminate the possibility of later injustice by following what the law clearly tells you you have a right to do, and that is to find this defendant guilty as charged." The Court held that the argument was improper.
The only reply made by the State is that the fixing of the punishment was one of the questions to be decided by the jury, and that the argument of the district attorney was therefore pertinent and applicable. The reply to that suggestion is that in all indictments for murder, the punishment which is administered by the court always depends upon the nature of the verdict of the jury in Mississippi, and the jurors are usually instructed as to the various forms in which they may report their verdict, and the consequent duty of the trial judge in fixing the punishment depends upon the verdict which is rendered.
We appreciate the fact that prosecuting attorneys should not be handcuffed in their arguments, and should be permitted to draw their own conclusions from the facts and evidence and express these to the jury, but in this case there was no proof of the facts recited by the prosecuting attorney, either as to other instances of prosecutions for murder mentioned by him or of pardons and suspensions referred to in his statement.
It was clearly error for the district attorney to refer to the 38 Iver Johnson Pistol in his argument to the jury. That pistol was not at the scene of the crime, nor was it taken from Mr. Coen. It had nothing to do with the case. As stated, the only pistol there was a cap, or toy, pistol, and Mr. Coen testified he saw no pistol; therefore, so far as putting Mr. Coen in fear was concerned, no pistol whatever was used. Three persons participated in the robbery — appellant, Virgil Smith and Howard White. It appears that the weapon which was really used in the hold-up was what is called a dirk knife. It is common knowledge that the weapon usually used in committing this crime is a pistol or some firearm. The title to the section is "Robbery with firearms." Such a weapon, both in the likelihood and manner of its use, and the injury resulting from such use, is much greater than that of a knife. A pistol can be used effectively at much greater distance and much more quickly than a knife and the victim has less chance to avoid serious injury from being shot than from being cut.
As to the third question, the common understanding of "stick-up" is a hold-up, usually by use of a pistol. The jury must have understood from the use of the word "stick-up" that appellant, a few days prior to the robbery here, was guilty of another crime of robbery by hold-up of the victim. It was incompetent to show that he committed another crime distant from and having no relation to, or casual connection with, the one with which he was being tried. But that knowledge in the mind of the jury certainly could do him no good when they were trying him for the same kind of an offense.
As stated above, the only real question in this case was the extent of the punishment. There was no question of appellant's guilt. He frankly said he took part in the robbery. The jury administered the extreme penalty. It is evident that each and all of the errors mentioned above bore heavily upon the extent of the punishment. The argument that the jury should put him to death and not send him to the penitentiary, because he would shortly be pardoned or the sentence suspended, and he would again be turned loose upon the public; that he had used a pistol in the robbery, and that he had a few days before engaged in another hold-up, must have been very persuasive in bringing the jury to a death penalty verdict. We are impressed with the probability of this because the case does not, in fact, present exaggerating elements calling for such extreme penalty. Only a knife was used so far as Mr. Coen was concerned. He said that. He said he saw no pistol. No one was injured. This is a very harsh law, especially so where the penalty is death and yet there is no personal injury of any kind to anyone, and, as a matter of fact, under the circumstances of this case, no real likelihood of personal injury. Three persons took part in this crime. So far as this record shows, appellant was largely influenced to go through with it by Smith. The place was a country store. Smith had lived nearby and knew the surroundings. He first urged appellant and White to go into the store and rob Mr. Coen while he, Smith, remained in the car. However, while Smith and White went into the store, their hearts failed them and they did not rob Mr. Coen. When they reentered the automobile and were driving away, Smith urged that the crime be committed, saying this would be easy money, and then the three returned to the store and committed the crime while Mr. Coen sat in a chair. Appellant was the first to be tried. Presumably the other two have been or will be. Appellant offered to put them on the stand but they invoked their constitutional rights and refused to testify. On the record before us both are equally as guilty, and Smith more so, than appellant. If the other two are given the extreme penalty, which, by comparison with the guilt of appellant, ought to be done, then the State has exacted the lives of three persons for a robbery where no one was injured personally, and there was, under the circumstances, little likelihood of personal injury. While it is unlikely we would reverse the case for any one of the foregoing errors, standing alone, yet they were errors, and we are convinced that, taken together, and especially in connection with what is said hereafter, worked a great injustice on appellant.
On February 21, 1945, defendant was arraigned; the court refused to accept a plea of guilty and entered a plea of not guilty. He had no counsel at that time. The next day the court appointed counsel to represent him. Section 2505, Code 1942, empowers the trial judge to appoint counsel in such case and provides ". . . And the defendant shall be entitled to advice of such counsel before he is required to plead to the indictment." The district attorney offered to let the accused withdraw his plea and rearraign him. His counsel were permitted to move to quash the indictment, which motion, being overruled, they demurred to the indictment, and the demurrer being overruled, a special venire was granted. In Robinson v. State, 178 Miss. 568, 173 So. 451, this Court said that while the statute is mandatory and should be observed in all capital cases, yet where it is shown no possible wrong was done accused, the error would be harmless. In that case, counsel appointed after arraignment, as here, was permitted to make a motion to quash the indictment and challenge the competency of the grand jurors. It does not appear in this case that appellant was prejudiced in the slightest by this action, and, therefore, is not now, and would not hereafter be, ground for reversal.
The court appointed John T. Armstrong and Miss Lena Zama as counsel for appellant. Mr. Armstrong filed a petition to be relieved of that duty and responsibility on the ground that because of his close business, professional and personal relation to Mr. C.C. Coen, the victim of the robbery and chief prosecuting witness, he would be embarrassed to represent appellant, and was apprehensive he might unconsciously fail to properly represent his client. He supported the petition by affidavit. Mr. Coen also testified to that close relationship, but said such representation by Mr. Armstrong would not affect the relation between them. The court denied the petition. The presentation of this situation to the court was commendable and a performance of a duty by the attorney, because the accused had a constitutional right to the services of an attorney free to devote his entire energies and ability, unembarrassed by other connections, to the defense of his case. The situation, as then confronting the trial judge, presented to him a delicate question, but the subsequent proceedings in this case have amply demonstrated the soundness and wisdom of his judgment. The test is whether the accused has been protected, so far as counsel can do so, in all of his legal rights. Tested by that rule, appellant certainly has no cause for complaint in this case. It is pertinent to that question, and not judicially improper, for us to say, that seldom has a record come to this Court disclosing on the part of counsel for their client, the energy, skill and earnestness which counsel have put forth for appellant.
Reversed and remanded.
Sydney Smith, C.J., took no part in this decision.