(dissenting).
“There will be no continuance in this case,” was the trial judge’s arbitrary and precluding statement without any inquiry of the appointee’s fitness or of his possible acceptance by appellant as counsel of his choice. Such a predisposition of an issue of constitutional right tendered by the uncontradicted affidavits in a motion which is unopposed by the prosecution transcends a mere question of discretion. Though the paramount fact in the case, the precluding effect of this ruling is not discussed in Judge WILBUR’S opinion, much less that it began the hearing on the issue and shut off all protest.
Even if the record did not thus clearly show the denial of the constitutional right, I cannot concur in the statement of the principles relied upon for the determination of the issue presenting the claim to the right.
Primarily, therefore, I dissent from the statement of the ground of appellant’s appeal in the first paragraph of that opinion. In its essence the ground is not “that the court erred in denying his application for a continuance.” It is that the court deprived appellant of his constitutional right to a “fair opportunity to secure counsel of his own choice” and his “corollary” right to a prepared counsel, as held in Powell v. State of Alabama, 287 U.S. 45, 53, 72, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527:
(a) In not granting deliberative time for determining whether the illness of the counsel of appellant’s choice, who had continuously advised him during the twenty-three months from his indictment to two days before the long and complicated trial, warranted a continuance for his recovery or until other counsel had consulted with him. Having lost the counsel advising him “during perhaps the most critical period” .between “arraignment and trial,”' appellant was as if he never had him.
“In any event, the circumstance lends-emphasis to the conclusion that during-perhaps the most critical period of the proceedings against these defendants, that is-to say, from the time of their arraignment until the beginning of their trial, when, consultation, thorough-going investigation- and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself. People ex rel. Burgess v. Risley, 66 How.Prac. (N.Y.) 67; Batchelor v. State, 189 Ind. 69, 76, 125 N.E. 773.” Powell v. State of Alabama, supra, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, 84 A.L.R. 527.
(b) In arbitrarily forcing upon appellant for instant trial, without inquiry, and precluding inquiry by ruling that the trial would not be continued in any event, the counsel for a charged coconspirator, whose statements, if admissible, show that appellant chose not to have him, and, though I believe it irrelevant, who, demonstrably from the trial record, was incapable of properly representing and did improperly represent him; and
(c) In failing to ask appellant whether the counsel so imposed on him was one in his possible range of choice and whether, having lost his long prepared counsel, he could, instanter, be tried without assembling again the law and evidence for his defense.
“The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob.” Powell v. State of Alabama, supra, 287 U.S. 45, 59, 53 S.Ct. 55, 60, 77 L.Ed. 158, 84 A.L.R. 527.
I cannot concur with the conclusion of Judge WILBUR’S opinion that the constitutional right to counsel, as analyzed in Powell v. State of Alabama, is not as much the right of an intelligent white man, accused of any serious crime, as it is of a negro accused of a capital offense. The essence of the right is not dependent *951upon either the nature of the crime or the race or mental development of the citizen upon whom the Constitution has conferred it. Historically, the right was first created for crimes other than capital.
It is my opinion that, under Powell v. State of Alabama, where in any case, this constitutional right is established as having been denied, reversible error occurs. The granting of the right is in all cases paramount to any question of the convenience of the court or the condition of its calendar.
It is proper to state that this court knows of the then crowded condition of the calendar of the court below." No better evidence is required than that this criminal trial was delayed for twenty-three months after indictment, when, two days before the case was called, the appellant found himself both penniless and with an incapacitated counsel. It is my belief that the record showing the arbitrary action of an able and conscientious judge, evidences the overstrain of an unceasing pressure of ever mounting litigation, rather than his deliberative action.
Proper deliberation in deciding the rare cases where, as here, this constitutional issue is definitely framed in an appropriate motion, will not cause any appreciable delay in the administration of justice. No doubt if, in this case, appellant had been consulted about his defense, the court could have found proper counsel without serious embarrassment to any one. Plow ever, even had serious embarrassment resulted, it would no more justify a deprivation of appellant’s constitutional right than would the embarrassment of a state justify legislative reform which takes property without due process.
Powell v. State of Alabama, 287 U.S. 45, at pages 66 et seq., 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, decides that the denial by a state court of “a fair opportunity to secure counsel” of the accused’s choice, and the failure to secure his “corollary” right of a proper appointment by the court, is a denial of “due process” under the Fourteenth Amendment. It is, therefore, equally a denial of “due process” under the Fifth Amendment. Id., 287 U.S. 45, page 69, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.
“It never has been doubted by this court, or any other so far as we know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law. * * *
“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, of those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” Powell v. State of Alabama, supra, 287 U.S. 45, 68, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 84 A.L.R. 527.
As shown in the memorandum above, the twenty-three crimes charged required fifty-seven printed pages of the record for their statement; the trial occupied ten days in the examination of the thirty-six witnesses and offering and introduction of one hundred and sixty-seven documents. If in any case “an intelligent and educated layman” required counsel this is certainly one.
The uncontradicted affidavit of footnote 1, above, shows that appellant was without means to employ counsel, and that he had been unable to secure gratuitous counsel either through his friends or his own ef*952forts in the Sunday and Monday before the trial after sickness had taken from him the counsel who had advised him in the “most critical period” of the twenty-three months between “arraignment and trial.” Since he was no more able than the Scottsboro boys to defend himself, propria persona, in such a mass of criminal charges on such complicated and extended evidence, and since, though not a capital offense, instead of one, there were charged twenty-three of the “serious offenses” the Powell Case says require the constitutional right of counsel, appellant was as much entitled as the Scottsboro defendants to the “corollary” constitutional right of a proper appointment by the court.
“In a case such as this, whatever may be the rule in other cases, the right to have counsel appointed, when necessary, is a logical corollary from the constitutional right to be heard by counsel.” Powell v. State of Alabama, supra, 287 U.S. 45, 72, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527.
There is no more reason to sustain the action of a jury and court where the trial is conducted without due process, because the result imprisoning a supposedly wicked person is desirable, than that a state should take property without the due process of the Fourteenth Amendment because the property when taken is devoted to a desirable public purpose. The principle applied to property rights applies with equal force to human rights. If having counsel of one’s choice or the “corollary” right of counsel properly prepared is a matter of due process, its deprivation invalidates the judicial result as much as if there had been a trial without a jury, fairly conducted by a judge, with abundant evidence to show the guilt of the accused.
I therefore dissent from the thesis of the majority that if the result would have been the same if appellant had had counsel of his choice, the judgment should be sustained. Incidentally, the record clearly shows that the result in all probability would have been quite different.
If Judge WILBUR’S view that the court’s arbitrary action is to be justified by the jury’s verdict that appellant was a “shrewd and unscrupulous man of affairs,” so the Scottsboro jury’s verdict that appellants had raped a helpless white woman would have justified the judge’s arbitrary action in that case. The Supreme Court declined to apply such afterwisdom but held that in deciding the issue as to right to counsel, the presumption of innocence controlled.
“However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent.” Powell v. State of Alabama, supra, 287 U.S. 45, 52, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.3
I also dissent from the thesis that it is immaterial whether the denial of such counsel violates the constitutional right to due process or denies a mere statutory right concerning which the error may be deemed as not reversible because not affecting the justice of the result. The distinction is clear between denying due process and nonprejudicial error committed in procedure which denies no fundamental right conferred by the Constitution.
All the above requires dissent from the necessary inference arising from the interpretation Judge WILBUR places on the quotation from 287 U.S. 45, page 71, 53 S.Ct. 55, 65, of the opinion in the Powell Case. The inference is that the Supreme Court has decided no more than that where the defendants are ignorant and imprisoned negroes charged with a capital offense there exists a constitutional right to counsel, and that it must not be inferred that it exists in any other case. My interpretation of that quotation, in connection with the whole of the Powell opinion, is that in every case where a defendant is “charged with a serious crime” (287 U.S. 45, 59, 53 S.Ct. 55, 60) there exists the constitutional guarantee with the “corollary” right (287 U.S. 45, 72, 53 S.Ct. 55, 65) and that in denying the right due process is denied, but that in holding it has been denied under the facts of the Powell Case it is not creating the criterion of denial on the facts of any other case.
So much for what I regard the improper principles of. law in trying such a constitutional issue established for this Circuit at least by Judge WILBUR’S opinion. Applying the criterion of afterwisdom it is .apparent that the enforced attorney did not satisfy the requirements of the cited cases on which his opinion relies, and that *953the record does not show that the result would have been the same if appellant had had proper counsel. These cases, it will be noted, were decided before Powell v. State of Alabama, and none treats the denial of counsel as a denial of “due process.”
The case quoted, to support the doctrine that, upon denial of the right to counsel, the trial record will be examined to determine if there was prejudice, states the situation1there as follows: “There appeared, however, to be no real dispute as to the facts. There is no contention now that the record is not adequate or complete. The result would not rightly have been different, had counsel originally retained conducted the defense. So far as any questions of law were involved, the defendant’s rights were safeguarded by exception duly taken. In the circumstances, we cannot hold that any constitutional right of the defendant was infringed, or find any abuse of discretion by the trial court.” (Italics inserted.) Crouch v. U. S. (C.C.A.) 298 F. 437, 440.
In this case there is a “real dispute” as to the facts of appellant’s participancy in the conspiracy. Here no “exceptions were duly taken” or at all by appellant’s enforced counsel to the following: (a) The impaneling of the jury when appellant’s sick counsel was- not present and the record showed no counsel; (b) the denial by the court of a continuance within which the appellant could exercise his constitutional right.
All the facts were in “real dispute.” The second paragraph of Judge WILBUR’S opinion itself states that the fact as to Shores’ participancy in the conspiracy after March 19, 1930, constituted so “real” a “dispute” that the jury might have decided either way. That fact determined whether nine guilty verdicts were justified. Surely Judge Mack’s opinion in the Crouch Case cannot justify Judge WILBUR’S opinion, even if the denial of the constitutional right were not a deprivation of due process.
It is in connection with the “real dispute” as to appellant’s participancy in these nine crimes committed after March 19, 1930, that the gravest results appear from the appointment, without inquiry, of the counsel of a charged coconspirator. Appellant’s defense was thrown to the winds to aid his counsel’s first client.
Though Judge WILBUR’S opinion omits to state it in considering this part of appellant’s contention, the prosecution’s brief here does not deny that after the “March 19th” testified to by one of the defendants, appellant’s connection with the conspiracy ceased. The prosecution’s only claim here is that the date “March 19th” was stated without naming the year. The year is clearly established to be 1930 by the undisputed testimony that on April 1, 1930, a new company was formed in which appellant was “left out” and that in May 1930 the conspiring company had turned over the entire enterprise to the new company. None of the nine subsequent indictment letters was signed by appellant. They were signed by the new company. No connection between appellant and these nine letters was shown.
In this state of the record it is obvious that appellant’s counsel should have moved for a directed verdict separately on each one of the charges based on the succeeding letters. The testimony concerning appellant’s discontinuance in the conspiracy came as a part of defendants’ case. At the close of the prosecution’s case the attorney for the alleged coconspirator Gus Shores, so enforced on appellant by the court, had indicated the prejudicial inconsistency of his employment by the following motion for a directed verdict:
“By Mr. Taylor: Appearing for Howard Shores and Gus Shores, we ask for a directed verdict as to both of these defendants on the ground that there is no evidence so far introduced in this case to sustain a verdict, particularly as to Gus Shores.”
One can imagine the effect on the jury of the discrimination shown in the word “particularly” as distinguishing the one client from the other. In the continuation of the trial with the defendants’ testimony as to the appellant being “left out” of the alleged conspiracy after March 19, 1930, the first motion for a directed verdict fell. A new motion was necessary to protect appellant with reference to possible verdicts based on the nine letters sent after March 19, 1930. Instead, appellant was abandoned to the jury by his counsel with the following extraordinary request for an instruction :
“By Mr. Taylor: If your Honor please, I want to renew the motion for a directed verdict as to Gus Shores and that is all I care to say.”
*954“And that is all I care to say” as to one of his clients; that one is surely innocent. The other man he left to the tender mercy of the jurors, although the evidence is uncontradicted that as to nine of the crimes this one of his clients had no participancy in them. Such is the result of denying to an accused man a “fair opportunity to secure counsel of his own choice” and of predetermining a hearing on a constitutional issue, quite likely requiring a continuance, by holding “There will be no continuance in this case.”
It is a fair inference that the trial judge made appellant’s sentences concurrent because of his realization of the prejudicial character of appellant’s defense, which the conflict of interests caused by his enforced appointment had created.
■ For the reason that appellant was denied due process and the added reason there has been an arbitrary abuse of discretion even in the absence of such denial, the judgment should be reversed.
The ruling is emphasized by the dissent (287 U.S. 73, 53 S.Ct. 66) which considered the subsequent trial record relevant in determining the propriety of denial,