Dissenting Opinion
White, J.— Petitioner testified that he had no chance to talk to his court appointed attorney except briefly in the courtroom at the arraignment; that at that time the attorney “just told me he was my lawyer and so forth, so on” and never asked him anything about his case. At no time did he have an opportunity to tell him about the prosecuting witness testifying differently in Criminal Court than in Municipal Court as to who robbed him nor to tell him anything else about the case.
The prevailing opinion puts Daniels’ complaint too mildly when it speaks of “Daniels’ testimony with respect to the virtual absence of consultation or discussion concerning Daniels’ defense” or of “the minimal consultation between Daniels and his trial counsel.” It is Daniels’ testimony that there was no consultation and his testimony is all that we have.1
Limited as we are, and as was the trial court, to petitioner’s testimony, the conclusion is inescapable that petitioner was denied (by the court appointed attorney himself) his basic constitutional right to counsel.
In Batchelor v. State (1920), 189 Ind. 69, 125 N.E. 773, the denial was by the jailer and the court, but the principle is the same. There the court said:
“It has been held that a constitutional right to be heard by counsel is not limited to the right to be heard by *590counsel at the trial, but that the spirit of the provision contemplates the right of accused to consult with counsel at every stage of the proceedings. People, ex rel. v. Risley (1883), 66 How. Pr. (N.Y.) 67; State v. Moore (1900), 61 Kan. 732, 60 Pac. 748. In the case first cited the court said: ‘Perhaps the literal letter of the constitutional provision would be complied with by allowing to the accused the benefit of counsel upon the “trial,” but such a construction would illustrate the truth of that part of the old legal maxim which declares: “The letter killeth,” and disregard its conclusion, “while the spirit giveth life.” Undoubtedly the clause of the Constitution under consideration was adopted to secure to the accused person all the benefits which could flow from the employment of counsel to conduct his defense; and to give him those it is essential that he should be allowed to consult with his counsel not only during the actual trial, but prior thereto, in order to prepare for his defense. Where a right is conferred by law, everything necessary for its protection is also _ conferred, although not directly provided for. The privilege of the presence of counsel upon the trial would be a poor concession to the accused if the right of consultation with such counsel prior to the trial was denied. To give life and effect, therefore, to the provision of the Constitution under consideration, it must be held to confer upon the relator every privilege which will make the presence of counsel upon the trial a valuable right, and this must include a private interview with his counsel prior to the trial.’
“There can be little doubt, under the facts disclosed in this case, that appellant was denied the right to be heard by counsel as guaranteed by the letter and the spirit of our state Constitution. There is nothing to show that appellant waived this right. . . . The denial of a constitutional right to a person prosecuted for a crime is prima facie prejudicial. . . .
“Where it appears on appeal from a judgment of conviction _ in a criminal case that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived or that no injury could have resulted to the accused by reason of such denial. (Id. at 76. My emphasis.)
“It is suggested that the motion for leave to withdraw the plea and to be permitted to plead not guilty does not *591allege that appellant was innocent of the crime charged or that the crime was committed under such circumstances as would not justify the infliction of the extreme penalty of the law. The burden of making such a showing did not rest on appellant; it is enough for him to show that he was denied a right to which he was entitled under the Constitution. Our law is no respector of persons. The rights of just and upright citizens are not more sacred in the eyes of the law than the rights of the poorest and meanest citizens of the state. The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent. The court cannot give its sanction to the conviction of any person accused of crime where the proceedings on which the judgment is based show the denial of a right to which the defendant was entitled under the Constitution. Such judicial sanction, in any case, would destroy the efficacy of the constitutional safeguards to protect the rights of all citizens of the state.” (Id. at 84. My emphasis.)
Unfortunately most of the Public Defender’s argument on appellant Daniels’ behalf is couched in terms of the alleged incompetency of counsel and the alleged inadequacy of his representation. This makes plausible the prevailing opinion’s dual thesis that (1) the presumption of competency has not been rebutted and (2) that Daniels has failed to sustain his burden of showing harm. In cases in which the convicted defendant’s complaint against his trial counsel involves merely trial tactics (what the attorney did or failed to do during the trial) he quite properly must discharge those burdens in order to make a case for relief. But to charge Daniels with either of those burdens when his complaint is that he was denied the right of pre-trial consultation with his assigned trial counsel is to misconceive the basic, fundamental nature of the constitutional right denied him.
Certainly if Daniels had gone to trial without having any attorney present and representing him (and without having waived that right) no lawyer or judge would suggest that he would not be entitled to relief from a conviction unless he could show harm. The right to counsel with his attorney *592prior to trial is no less a right and its denial is no less fatal to a conviction. Batchelor v. State, supra.
I would reverse.
Note. — Reported at 312 N.E.2d 890.
. We do have in the record a transcript of the trial testimony. The direct and cross examinations conducted by Daniels’ court appointed attorney belie no prior knowledge of the case.