William Weatherford, Plaintiff in Error, v. The State of Florida, Defendant in Error, 76 Fla. 219

Whitfield, J. This writ of error was taken to a conviction of a statutory felony. No contention is made here except that the court erred in denying a motion for new trial. The bill of exceptions contains the following: “Defendant on the 18th day of March, 1918, after sentence had been imposed, made a motion for a new trial on the following grounds: “First. Because the accused was tried and convicted of a felony without counsel to represent him in said cause, the accused being at the time of such trial and conviction unable to employ counsel to represent him. “Second.

Because the accused when brought to the Bar for arraignment was inquired of by the court if he had counsel to represent him and upon his answering in the negative the accused was not inquired of by the court If he desired counsel to represent him therein, nor did the court inform him at the time of the said arraignment, nor at any other time that the accused had a right to be represented by counsel in said cause, and because the court did not inform the accused at the time of said arraignment nor at any other time, that if he was unable to employ counsel and would signify his desire to be represented by one, that the court would appoint some attorney to represent him. “Third.

Because the accused at the time of said arraignment, trial and conviction, through poverty was unable to employ counsel to represent him and because the court did not make due and proper inquiry as to the ability of the accused to employ counsel, and did not inform the accused as to his legal rights therein to be represented by counsel, in accordance with the provisions of

Section Eleven of the Bill of Rights of the Constitution of the State of Florida, and in accordance with the provisions of

Section 3969 of the General Statutes of the State of Florida. “The facts are that before the defendant was arraigned, the court inquired of him as to whether or not he had counsel to represent him, and the defendant answered in the negative. The defendant was then asked if there were any witnesses that he desired to have summoned to testify in his behalf, to which the defendant answered in the affirmative and named the witnesses, whereupon the court ordered subpoenas to be issued for the witnesses named by the defendant.

The court then asked the defendant if he was ready for trial and upon the defendant answering in the affirmative, the court ordered the cause to proceed and at the trial the witnesses named by the defendant appeared and testified. “The defendant did not signify his desire to have counsel to represent him nor did he advise the court that he desired to secure tlie services of an attorney to represent him, nor did he advise the court that he was unable to employ counsel by reason of his poverty.

The court did not inquire of the defendant if he desired counsel to represent him nor did the court inform him at the time nor at any other time that he had a right to be represented by counsel, nor did tbe court advise tbe defendant at any time that if he was unable to employ counsel and would signify bis desire to be represented by one, that tbe court would appoint some attorney to represent bim, nor did tbe court make inquiry as to tbe ability of tbe defendant to employ counsel.” The

section of the Constitution and tbe statute referred to are as follows: “In all criminal prosecutions tbe accused shall have tbe right to a speedy and public trial, by an impartial jury, in the county where tbe crime was committed, and shall be beard by himself, or counsel,, or both, to demand tbe nature and cause of tbe accusation against bim, to meet the witnesses against bim face to face, and have compulsory process for tbe attendance of witnesses in bis favor, and shall be furnished with a copy of tbe indictment against bim.” Sec. 11, Declaration of Rights. “After any person shall be indicted for felony or for a misdemeanor, or after an information shall be filed against bim, if be be not already in custody, a capias shall issue for bis arrest and shall be directed to all and singular tbe Sheriffs of tbe State of Florida, and when tbe grand jury shall have presented to tbe Circuit Court a bill of indictment for felony, and the accused be in custody, the court shall cause him to be arraigned and tried at tbe same term, unless good cause be shown for a continuance, and shall allow him counsel to assist bim in bis trial if be desires it.” Sec. 3969, Gen.

Stats., 1906, Florida Compiled Laws, 1914. In Cutts v. State, 54 Fla. 21, 45 South. Rep. 491, this court said: “It has been tbe general practice in trial courts in this State, when a party charged with felony has been brought to the bar for arraignment to inquire of tbe accused whether be bad counsel to represent bim, and if upon inquiry it developed that he had no attorney and was unable to employ one, to ask the accused whether he desired one to represent him.

If he signified his desire to be represented by counsel, then it has been the practice for the trial judge to appoint some attorney to represent the accused. This practice is in accord with the letter and spirit of

Section 11 of the Bill of Eights, and

Section 3969 of the General Statutes of 1906. But the right of an accused to be defended by counsel is one which may be waived, and the trial court has no authority to compel one who is of mature age and judgment to accept the services of an attorney. While the practice in this State has been, as indicated above, still there is no law requiring it, and it is not usual,, for the record to show that this practice is observed. In the absence of anything from the record which shows the contrary, it must be presumed that the trial court did its duty.

It cannot be presumed that an accused person was denied the privilege of counsel when desired by him.” It does not appear that the assistance of counsel was “desired by” the accused; and the mere failure of the trial judge to ask the accused if he desired counsel or was unable to employ counsel to represent him in the case, or to inform him that he had a right to be represented by counsel, or that the court would appoint counsel to represent him if he so desired, does not show a deprivation of any right secured to the accused by law; nor does this omission alone show erroneous or harmful procedure.

A party on trial for a felony may waive his right to have counsel and may conduct his own defense under the statute which provides that “any person may manage his own cause in any of the courts of this State.” Sec. 1347, Gen. Stats., 1906, Florida Compiled Laws, 1914. It does not appear that the accused was not competent to “manage his cause,” or that he in fact desired the assistance of counsel; nor is there anything to indicate that the accused did not have a fair trial wherein all of his substantial rights were accorded to him in due course. Cutts v. State, supra. Judgment affirmed. Browne, C.

J., and Taylor, Ellis and West, J. J., concur.