I am unable to concur in an affirming opinion in this case. It is my conclusion that the facts set forth in the clerk's transcript alone justify a reversal upon the ground that the appellant did not have a fair trial, such as is guaranteed to him by the Constitution of the State of Iowa, in that he did not have the assistance of counsel at the time of his trial. The facts relative to his appearance at the trial of this case without counsel are correctly set forth in the affirming opinion.
The question that is uppermost in the mind of the writer of this dissent is whether or not, under all the circumstances, it can be said that the appellant, appearing for himself, in the trial was afforded that degree of protection that our State Constitution gives to an individual charged with a crime.
Article I, section 10, of the Constitution of Iowa provides:
"In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury * * * and, to havethe assistance of counsel." (Italics supplied.)
In the instant case the appellant did not have the aid of counsel, and because of that fact, regardless of all the circumstances that may have preceded his trial, it is the conclusion of this dissenter that his constitutional rights were violated and that any judgment entered in a proceeding under the circumstances disclosed by the record necessarily should be declared void. The first attorney that the appellant had was dismissed by him and the record discloses that thereafter two attorneys withdrew their appearance for defendant after they had accepted an appointment made by the court for the purpose of assisting the appellant in presenting his defense. As further shown by the affirming opinion, the county attorney, at the time of the *Page 1265 trial, and in open court, stated to the defendant that there was an attorney present who would take his case. The appellant, in commenting on this situation stated, "right then and there I asked permission to plead my case." The fact that the appellant, under these circumstances, asked permission to plead his own case does not, in the opinion of the writer of this dissent, constitute a waiver of his constitutional rights. It was the duty of the court to fully advise the appellant as to his right of counsel and to fully inform him as to the effect of any waiver of that privilege. The record does not disclose that the court in any manner advised the appellant as to the right that was his to have an attorney appear for him. I think the court should have fully advised the appellant of his constitutional rights.
The statement made in the case of Walleck v. Hudspeth, 10 Cir., Kan., 128 F.2d 343, 345, seems applicable to the circumstances as here related. It was there stated:
"To offer to appoint counsel upon condition, however, that the trial proceed at once, is in effect denying the right of counsel. Under such conditions, an attorney could render no effective aid or assistance to the defendant."
In the recent case of Adams v. United States, 317 U.S. 269,279, 63 S. Ct. 236, 241, 87 L. Ed. 268, 146 A.L.R. 435, the Supreme Court of the United States held that where a defendant without counsel waived the right to a trial by a jury a conviction could be upheld. However, in this last-cited case that court, speaking through Justice Frankfurter, said:
"The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. The public conscience must be satisfied that fairness dominates the administration of justice. An accused must have the means of presenting his best defense. He must have time and facilities for investigation and for the production of evidence. But evidence and truth are of no avail unless they can be adequately presented. Essential fairness is lacking if an accused cannot put his case effectively in court. But the Constitution does not force a lawyer upon a defendant. He may waive *Page 1266 his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Johnson v. Zerbst, 304 U.S. 458, 468-69."
It may be suggested that statements attributed to appellant as to his willingness to appear for himself constitute a waiver. However, in connection with this particular question, the Supreme Court of the United States, in the case of Glasser v. United States, 315 U.S. 60, 70, 71, 62 S. Ct. 457, 465, 86 L. Ed. 680, speaking through Justice Murphy, made this statement:
"To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights."
In connection with this question of waiver, it is further stated in this last-cited case as follows:
"Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. Speaking of the obligation of the trial court to preserve the right to jury trial for an accused, Mr. Justice Sutherland said that such duty `is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.' Patton v. United States, 281 U.S. 276, 312-313 [50 S. Ct. 253, 263, 74 L. Ed. 854, 70 A.L.R. 263]. The trial court should protect the right of an accused to have the assistance of counsel. `This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.' Johnson v. Zerbst, 304 U.S. 458, 465 [58 S. Ct. 1019, 1023, 82 L. Ed. 1461]."
There are numerous authorities which support the contention of this dissenter. I shall not quote from them, inasmuch as *Page 1267 I have no desire to present a lengthy dissent. However, the fact that statements from these cases are not set forth does not indicate a lack of conviction as to their applicability. They are as follows: Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019,82 L. Ed. 1461; Evans v. Rives, 75 App. D.C. 242, 126 F.2d 633; Thomas v. District of Columbia, 67 App. D.C. 179, 90 F.2d 424; Wood v. United States, 75 App. D.C. 274, 128 F.2d 265, 141 A.L.R. 1318; Walker v. State, 194 Ga. 727, 734, 22 S.E.2d 462,466, 28 S.E.2d 656; Powell v. State of Alabama, 287 U.S. 45,53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527.
It is to be regretted that, upon a record such as is presented in this case, an affirmance can stand. It is the duty of an appellate court to consider fearlessly and impartially the matters that are before it. It should not put its approval upon a conviction unless it is satisfied that the trial of the appellant has been of the fair and impartial nature that our State Constitution contemplates. The following statement made by the Georgia Supreme Court, in the case of Walker v. State, supra, seems quite applicable in this case:
"Neither zeal to bring to proper punishment nor wholesome desire to apprehend one guilty of so violent and outrageous a crime as that charged in the present case must be allowed to break down this guaranty, given by all States in the Union save one, and by the Federal constitution as well, and as given by Georgia in 1798. See Betts v. Brady, 316 U.S. 455 (62 Sup. Ct. 1252, 86 L. ed. 1116, and the historical discussion there given. The very fact that society becomes so outraged at such a crime makes it all the more necessary that this be strictly guarded and preserved' (Martin v. State, supra), and not impinged upon."
The record further shows that on December 31, 1942, an attorney was appointed to conduct an appeal for this appellant. It is also shown by the clerk's transcript that on January 6, 1943, the attorney named to appeal the case for appellant withdrew his appearance.
I would reverse the judgment of conviction and remand the case for a new trial. I am satisfied that upon retrial counsel can be found, who, under the appointment of the court, will *Page 1268 properly and effectively represent appellant in the trial of the case. The fact that the appellant was not given the full protection that he is entitled to by one of the courts of this state, in my judgment, constitutes reversible error.