Birmingham v. State , 192 Ark. 1095 ( 1936 )

I cannot persuade myself that this case, should be, affirmed. Appellant was arrested on April 14, 1936, and on failure to make bail was incarcerated in the county, jail. Immediately after arrest, he communicated with Mr. Coleman and employed him as, attorney to defend his case. Mr. Coleman was busily engaged in the trial of other cases in the circuit court on the 14th and 15th of April. On April 16 appellant's case was called to trial add Mr. Coleman apprised the court of his recent employment and that he had had no time or opportunity to discuss the facts of appellant's case with him or with the witnesses; and that he had had no time or opportunity to investigate the law in reference thereto. Mr. Coleman requested the court to postpone the case for a few days or continue it for the term and thereby give him reasonable opportunity to make necessary investigation. The trial court refused to either postpone the case for a few days or continue the case for the term and thereupon Mr. Coleman withdrew from the case as attorney. Then the court of its own motion appointed two other attorneys to defend appellant with the result here appealed from. I concede that it is the established rule in this state that the postponement of a case for a few days or a few hours rests in the sound discretion of the trial court and that this court will not reverse a case unless it is made to appear that the trial court has abused its discretion; but, as I perceive, such is the showing here made. My experience of more than 25 years in the law has convinced me that the appointment or employment of counsel, however capable they may be, is futile unless they have a reasonable time to consult with the client, study the case, and inquire into the law and the facts and circumstances surrounding it and be thereby afforded an opportunity to be of some service to the client or person whose rights such attorney undertakes to protect and defend. Courts of great learning have expressed similar views. See Samuals v. Commonwealth, 154 Ky. 758, 159 S.W. 575; Reliford v. State, 140 Ga. 777, 79 S.E. 1128; North v. People, 139 Ill. 81, 28 N.E. 966; State v. Deschamps, 41 La. Ann. 1051, 7 So. 133; State v. Lewis, 74 Mo. 222; Miller v. U.S., 8 Okla. 351, 57 P. 836; Commonwealth v. Delero, 218 Pa. 487, 67 A. 764; Reg. v. Taylor, 11 Cox C. C. 340. The denial of such right is reversible error, see cases cited supra, also 16 C.J. 483. Moreover, all the cases point out that the fact that the employed counsel is engaged in other business before the same court during the period of delay and that the accused is confined in jail during the period aggravate rather than ameliorate the rigor of the rule.

The idea seems to prevail in some of the courts of this state that the guarantee of "a speedy and public trial" to an accused as provided in 10 of art. 2 of the Constitution of 1874, affords authority to the state to demand immediate trials in criminal cases irrespective of the rights of the accused. Obviously this provision of the declaration of rights is for the benefit of the accused and not the state.

I respectfully register my dissent.