Dissenting Opinion.
Toni), J.The Constitution guarantees every accused a fair trial.
In this case, the accused, an ignorant laborer, had spoken to coun.sel to defend him, and the counsel did appear for him in some proceeding in the case. When the case was called for trial the counsel announced, for reasons assigned by him, that he withdrew from the case. The trial, however, was proceeded with instantaneously, and the accused, without counsel and without witnesses, was convicted. Of course, under these disadvantages, any other result could scarcely be expected.
In his affidavit for a new trial these facts are stated, and the further statement made that he was completely taken by surprise by the withdrawal of his counsel, and believed he was without remedy.
There is no reason to doubt that the accused fully believed that the counsel to whom he had spoken, and supposed he had employed, had made the necessary preparations for his trial, and that through him his witnesses had been summoned, and we can well imagine how an accused of average intelligence, in such a crisis, finding himself, unexpectedly without counsel and about being hurried into a trial without his witnesses, would be overwhelmed with surprise and consternation, *23and rendered comparatively helpless. In such a state of mind, even if he knew he had a right to ask for a postponement of the trial and for the appointment to him of counsel, of which this defendant was doubtless wholly ignorant, as he swears — so great would be his confusion as to render him incapable of demanding anything of the court under such circumstances. I think that the trial judge, in the cause of justice, should either have postponed the trial to enable the accused to lind that he was entitled to be represented by counsel or to have so informed him on the spot.
1 do not think it. always compatible with justice to sustain a conviction resting mainly, if not solely, upon no other foundation than that one is presumed to know the law — a violent presumption when applied to a certain class of our people.
For these reasons I do not consider that the trial of the accused was a fair one, and I therefore dissent.