No.

837
U.S.

Betts v. Brady
316 U.S. 455 (1942) • 62 S. Ct. 1252 •
86 L. Ed. 1595
Decided Jun 1, 1942

CERTIORARI TO HON. CARROLL T. BOND, fast rules. Asserted denial of due process is to be
A JUDGE OF THE STATE OF MARYLAND, tested by appraisal of all facts in the case; and that
BEING A JUDGE OF THE COURT OF which, in one setting, may constitute a denial of
APPEALS OF MARYLAND FROM THE CITY due process, because it is a denial of fundamental
OF BALTIMORE. fairness shocking to the universal sense of justice,
may, in other circumstances, and in the light of
No. 837.
other considerations, fall short of such a denial. P.
Argued April 13, 14, 1942. Decided June 1, 1942. 462. 5. Decisions of this Court do not lay down a
rule that in every case, whatever the
1. In the light of the applicable law of Maryland,
circumstances, one charged with crime, who is
an order of the Chief Judge of the Court of
unable to obtain counsel, must be furnished
Appeals, he being also the judge of that court from
counsel by the State. P. 462. 6. A review of state
the City of Baltimore, denying petitioner's release
constitutional and statutory provisions on the
upon a writ of habeas corpus, held reviewable
subject, in connection with the common law,
here by certiorari under Jud. Code § 237, as a
demonstrates that, in the great majority of the
"final judgment" of the "highest court" in which a
States, it has been the considered judgment of the
decision of the federal question involved could be
people, their representatives and their courts that
had. P. 458. 2. A judgment of a state tribunal
an appointment of counsel for indigent defendants
denying release on habeas corpus, which is not
in criminal cases is not a fundamental right,
reviewable in any other state court and ends the
essential to a fair trial, and that the matter has
particular proceeding, is a final judgment within
generally been deemed one of legislative policy. In
the meaning of Jud. Code § 237, notwithstanding
the light of this evidence it can not be said that the
that under the state law the prisoner retains the
concept of due process incorporated in the
right to seek discharge by applications to other
Fourteenth Amendment obliges the States,
courts and judges successively. P. 460. 3. The due
whatever may be their own views, to furnish
process clause of the Fourteenth Amendment does
counsel in every such case. P. 471. 7. Upon the
not incorporate, as such, the specific guarantees
facts of this case, the refusal of a state court to
found in the Sixth Amendment, although a denial
appoint counsel to represent an indigent defendant
by a State of rights or privileges specifically
at a trial in which he was convicted of robbery, did
embodied in that and others of the first eight
not deny him due process of law in violation of
amendments may, in certain circumstances, or in
the Fourteenth Amendment. P. 472. Affirmed.
connection with other elements, operate, in a
given case, to deprive a litigant of due process of CERTIORARI, 315 U.S. 791, to review an order
456 law in violation of the Fourteenth. P. 461. *456 4. of a judge of the Court of Appeals of Maryland
The application of the due process clause to state from the City of Baltimore, denying petitioner's
criminal proceedings is not governed by hard and release upon a writ of habeas corpus.

1
 Betts v. Brady 316 U.S. 455 (1942)

Messrs. Jesse Slingluff, Jr. and G. Van Velsor Wolf answered, a hearing was afforded, at which an
for petitioner. agreed statement of facts was offered by counsel
for the parties, the evidence taken at the
Messrs. William C. Walsh, Attorney General of
petitioner's trial was incorporated in the record,
Maryland, and Robert E. Clapp, Jr., Assistant
and the cause was argued. Judge Bond granted the
Attorney General, with whom Mr. Morton E.
writ but, for reasons set forth in an opinion, denied
Rome was on the brief, for respondent.
the relief prayed and remanded the petitioner to
the respondent's custody.
MR. JUSTICE ROBERTS delivered the opinion
of the Court. The petitioner applied to this court for certiorari
directed to Judge Bond. The writ was issued on
The petitioner was indicted for robbery in the
account of the importance of the jurisdictional
Circuit Court of Carroll County, Maryland. Due to
458 questions involved *458 and conflicting decisions1
457 lack of funds, *457 he was unable to employ
upon the constitutional question presented. In
counsel, and so informed the judge at his
awarding the writ, we requested counsel to discuss
arraignment. He requested that counsel be
the jurisdiction of this court, "particularly (1)
appointed for him. The judge advised him that this
whether the decision below is that of a court
would not be done, as it was not the practice in
within the meaning of § 2372 of the Judicial Code,
Carroll County to appoint counsel for indigent
and (2) whether state remedies, either by appeal or
defendants, save in prosecutions for murder and
by application to other judges or any other state
rape.
court, have been exhausted."
Without waiving his asserted right to counsel, the 1 In re McKnight, 52 F. 799; Wilson v.
petitioner pleaded not guilty and elected to be tried
Lanagan, 99 F.2d 544; Boyd v. O'Grady,
without a jury. At his request witnesses were 121 F.2d 146; Carey v. Brady, 125 F.2d
summoned in his behalf. He cross-examined the 253; Commonwealth ex rel. Schultz v.
State's witnesses and examined his own. The latter Smith, 139 Pa. Super. 357, 11 A.2d 656;
gave testimony tending to establish an alibi. Commonwealth ex rel. McGlinn v. Smith,
Although afforded the opportunity, he did not take 344 Pa. 41, 24 A.2d 1.
the witness stand. The judge found him guilty and
2 Page 458 28 U.S.C. § 344 (b).
imposed a sentence of eight years.
1. Sec. 237 of the Judicial Code declares this court
While serving his sentence, the petitioner filed
competent to review, upon certiorari, "any cause
with a judge of the Circuit Court for Washington
wherein a final judgment . . . has been rendered . .
County, Maryland, a petition for a writ of habeas
. by the highest court" of a State "in which a
corpus alleging that he had been deprived of the
decision could be had" on a federal question. Was
right to assistance of counsel guaranteed by the
Judge Bond's judgment that of a court within the
Fourteenth Amendment of the Federal
meaning of the statute? Answer must be made in
Constitution. The writ issued, the cause was heard,
the light of the applicable law of Maryland.
his contention was rejected, and he was remanded
to the custody of the prison warden. Art. 4, § 6 of the State Constitution provides: "All
Judges shall by virtue of their offices be
Some months later, a petition for a writ of habeas
Conservators of the Peace throughout the State; . .
corpus was presented to Hon. Carroll T. Bond,
." Sec. 1 of Art. 42 of the Public General Laws of
Chief Judge of the Court of Appeals of Maryland,
Maryland (Flack's 1939 Edition) invests the Court
setting up the same grounds for the prisoner's
of Appeals and the Chief Judge thereof, the
release as the former petition. The respondent

2
 Betts v. Brady 316 U.S. 455 (1942)

Circuit Courts for the respective counties, and the the denial of a discharge by a judge of an inferior
several judges thereof, the Superior Court of court of Ohio who issued the writ and heard the
Baltimore City, the Court of Common Pleas of case at chambers. It appeared that the petitioner
that city, the Circuit Court and Circuit Court No. 2 had addressed his petition to a judge of the Circuit
of Baltimore City, the Baltimore City Court, and Court instead of the court itself; and that, for this
the judges of the said courts, out of court, and the reason, the order of the judge was not reviewable
Judge of the Court of Appeals from the City of by the Supreme Court of Ohio as it would have
Baltimore, with power to grant writs of habeas 460 been had the writ been addressed *460 to the
corpus and to exercise jurisdiction in all matters Circuit Court though heard by a single judge. The
459 pertaining thereto. *459 petitioner had not exhausted his state remedy
since, though he could have obtained a decision by
Although it is settled that the grant to the Court of
the highest court of the State, he had avoided
Appeals of the power to issue the writ is
doing so, and then sought to come to this court
unconstitutional and void,3 and although the
directly from the order of the Circuit Judge on the
statute does not confer on individual judges of the
theory that that judge's order was the final order of
Court of Appeals the power to issue a writ and
the highest court of the State which could decide
proceed thereon, nevertheless, those judges, as
his case. In a later decision, we referred to this and
conservators of the peace, have the power under
other cognate cases as deciding that appeals do not
the quoted section of the Constitution.4 In any
lie to this court from orders by judges at
event, Judge Bond is the Chief Judge of the Court chambers,5 but the fundamental reason for
of Appeals and the judge of that court from the
denying our jurisdiction was that the appellant had
City of Baltimore and, as such, is empowered to
not exhausted state remedies.
act.
5 Craig v. Hecht, 263 U.S. 255, 276.
3 State v. Glenn, 54 Md. 572, 596; Sevinskey

v. Wagus, 76 Md. 335, 25 A. 468. In view of what has been said of the power of
4 Ex parte O'Neill, 8 Md. 227; Ex parte
Judge Bond as a judicial tribunal to hear and
finally decide the cause, and of the judicial quality
Maulsby, 13 Md. 625.
of his action we are of opinion that his judgment
Sections 2 to 6, inclusive, 9 to 12 inclusive, and 17 was that of a court within the intendment of § 237.
of the statute prescribe the procedure governing
2. Did the judgment entered comply with the
the issue of the writ, its service, the return, and the
requirement of § 237 that it must be a final
hearing. No question is made but that Judge Bond
judgment rendered by the highest court in which a
complied with these provisions. It is, therefore,
decision could be had? Again answer must be
apparent that in all respects he acted in a judicial
made in the light of the applicable law of
capacity and that, in his proper person, he was a
Maryland. The judgment was final in the sense
judicial tribunal having jurisdiction, upon
that an order of a Maryland judge in a habeas
pleadings and proofs, to hear and to adjudicate the
corpus case, whatever the court to which he
issue of the legality of the petitioner's detention. If
belongs, is not reviewable by any other court of
Judge Bond had been sitting in term time as a
Maryland except in specific instances named in
member of a court, clothed with power to act as
statutes which are here inapplicable.6 It is true that
one of the members of that court, his judgment
the order was not final, and the petitioner has not
would be that of a court within the scope of § 237.
exhausted state remedies in the sense that in
Doubt that his judgment in the present instance is
Maryland, as in England, in many of the States,
such arises out of our decision in McKnight v.
and in the federal courts, a prisoner may apply
James, 155 U.S. 685, where we refused to review

3
 Betts v. Brady 316 U.S. 455 (1942)

461 successively *461 to one judge after another and to The Sixth Amendment of the national Constitution
one court after another without exhausting his applies only to trials in federal courts.9 The due
right.7 We think this circumstance does not deny process clause of the Fourteenth Amendment does
to the judgment in a given case the quality of 462 not incorporate, *462 as such, the specific
finality requisite to this court's jurisdiction. guarantees found in the Sixth Amendment,10
Although the judgment is final in the sense that it although a denial by a State of rights or privileges
is not subject to review by any other court of the specifically embodied in that and others of the first
State, we may, in our discretion, refuse the writ eight amendments may, in certain circumstances,
when there is a higher court of the State to which or in connection with other elements, operate, in a
another petition for the relief sought could be given case, to deprive a litigant of due process of
addressed,8 but this is not such a case. To hold law in violation of the Fourteenth.11 Due process
that, since successive applications to courts and of law is secured against invasion by the federal
judges of Maryland may be made as of right, the Government by the Fifth Amendment, and is
judgment in any case is not final, would be to safeguarded against state action in identical words
deny all recourse to this court in such cases. by the Fourteenth. The phrase formulates a
6 Bell v. State, 4 Gill. 301; Ex parte O'Neill, concept less rigid and more fluid than those
8 Md. 227; In re Coston, 23 Md. 271; envisaged in other specific and particular
Coston v. Coston, 25 Md. 500; State v. provisions of the Bill of Rights. Its application is
Glenn, 54 Md. 572; Annapolis v. Howard, less a matter of rule. Asserted denial is to be tested
80 Md. 244, 30 A. 910; Petition of Otho by an appraisal of the totality of facts in a given
Jones, 179 Md. 240, 16 A.2d 901. case. That which may, in one setting, constitute a
7 Judge Bond intimates that § 3 of Art. 42, as
denial of fundamental fairness, shocking to the
universal sense of justice, may, in other
amended by Laws 1941, c. 484 permits the
circumstances, and in the light of other
use of a rule to show cause (cf. Holiday v.
Johnston, 313 U.S. 342) or other form of
considerations, fall short of such denial.12 In the
preliminary inquiry to avoid the necessity application of such a concept, there is always the
of the issue of a writ and a hearing where a danger of falling into the habit of formulating the
redundant petition is filed disclosing no guarantee into a set of hard and fast rules, the
new matter. See, Salinger v. Loisel, 265 application of which in a given case may be to
U.S. 224, 231-232. He determined, ignore the qualifying factors therein disclosed.
however, in this case to issue the writ and
9 United States v. Dawson, 15 How. 467,
afford a hearing.
487; Twitchell v. Pennsylvania, 7 Wall.
8 Tenner v. Dullea, 314 U.S. 692. 321, 325; Spies v. Illinois, 123 U.S. 131,
166; In re Sawyer, 124 U.S. 200, 219;
Since Judge Bond's order was a final disposition Brooks v. Missouri, 124 U.S. 394, 397;
by the highest court of Maryland in which a Eilenbecker v. District Court, 134 U.S. 31,
judgment could be had of the issue joined on the 34, 35; West v. Louisiana, 194 U.S. 258,
instant petition we have jurisdiction to review it. 263; Howard v. Kentucky, 200 U.S. 164,
172.
3. Was the petitioner's conviction and sentence a
deprivation of his liberty without due process of 10 Hurtado v. California, 110 U.S. 516;

law, in violation of the Fourteenth Amendment, Maxwell v. Dow, 176 U.S. 581; West v.
because of the court's refusal to appoint counsel at Louisiana, 194 U.S. 258; Twining v. New
his request? Jersey, 211 U.S. 78; Frank v. Mangum,

4
 Betts v. Brady 316 U.S. 455 (1942)

237 U.S. 309; Snyder v. Massachusetts, denial of due process. The court stated further that
291 U.S. 97; Palko v. Connecticut, 302 "under the circumstances . . . the necessity of
U.S. 319. counsel was so vital and imperative that the failure
11 Compare Twining v. New Jersey, 211 U.S. of the trial court to make an effective appointment
78, 98; Powell v. Alabama, 287 U.S. 45; of counsel was likewise a denial of due process,"
Palko v. Connecticut, 302 U.S. 319, 323 ff. but added: "Whether this would be so in other
criminal prosecutions, or under other
12 Compare Lisenba v. California, 314 U.S.
circumstances, we need not determine. All that it
219, 236-237.
is necessary now to decide, as we do decide, is
The petitioner, in this instance, asks us, in effect, that, in a capital case, where the defendant is
to apply a rule in the enforcement of the due unable to employ counsel, and is incapable
process clause. He says the rule to be deduced adequately of making his own defense because of
from our former decisions is that, in every case, ignorance, feeble-mindedness, illiteracy, or the
whatever the circumstances, one charged with like, it is the duty of the court, whether requested
crime, who is unable to obtain counsel, must be 464 or not, to assign *464 counsel for him as a
furnished counsel by the State. Expressions in the necessary requisite of due process of law, . . ."
463 *463 opinions of this court lend color to the
Likewise, in Avery v. Alabama, 308 U.S. 444, the
argument,13 but, as the petitioner admits, none of
state law required the appointment of counsel. The
our decisions squarely adjudicates the question claim which we felt required examination, as in
now presented. the Powell case, was that the purported
13 Powell v. Alabama, 287 U.S. 45, 73; compliance with this requirement amounted to
Grosjean v. American Press Co., 297 U.S. mere lip service. Scrutiny of the record disclosed
233, 243, 244; Johnson v. Zerbst, 304 U.S. that counsel had been appointed and the defendant
458, 462; Avery v. Alabama, 308 U.S. 444, had been afforded adequate opportunity to prepare
447. his defense with the aid of counsel. We, therefore,
overruled the contention that due process had been
In Powell v. Alabama, 287 U.S. 45, ignorant and
denied.
friendless negro youths, strangers in the
community, without friends or means to obtain In Smith v. O'Grady, 312 U.S. 329, the petition for
counsel, were hurried to trial for a capital offense habeas corpus alleged a failure to appoint counsel
without effective appointment of counsel on but averred other facts which, if established,
whom the burden of preparation and trial would would prove that the trial was a mere sham and
rest, and without adequate opportunity to consult pretense, offensive to the concept of due process.
even the counsel casually appointed to represent There also, state law required the appointment of
them. This occurred in a State whose statute law counsel for one on trial for the offense involved.
required the appointment of counsel for indigent
Those cases, which are the petitioner's chief
defendants prosecuted for the offense charged.
reliance, do not rule this. The question we are now
Thus the trial was conducted in disregard of every
to decide is whether due process of law demands
principle of fairness and in disregard of that which
that in every criminal case, whatever the
was declared by the law of the State a requisite of
circumstances, a State must furnish counsel to an
a fair trial. This court held the resulting
indigent defendant. Is the furnishing of counsel in
convictions were without due process of law. It
all cases whatever dictated by natural, inherent,
said that, in the light of all the facts, the failure of
and fundamental principles of fairness? The
the trial court to afford the defendants reasonable
answer to the question may be found in the
time and opportunity to secure counsel was a clear

5
 Betts v. Brady 316 U.S. 455 (1942)

common understanding of those who have lived Georgia provided that the accused might be heard
under the Anglo-American system of law. By the by himself or counsel, or both. In 1776 New
Sixth Amendment the people ordained that, in all Jersey guaranteed the accused the same privileges
criminal prosecutions, the accused should "enjoy of witnesses and counsel as their prosecutors "are
the right . . . to have the assistance of counsel for 466 or shall be entitled to." *466
his defence." We have construed the provision to
The substance of these provisions of colonial and
require appointment of counsel in all cases where
early state constitutions is explained by the
a defendant is unable to procure the services of an
contemporary common law. Originally, in
attorney, and where the right has not been
England, a prisoner was not permitted to be heard
465 intentionally and *465 competently waived.14
by counsel upon the general issue of not guilty on
Though, as we have noted, the Amendment lays
any indictment for treason or felony.15 The
down no rule for the conduct of the States, the
practice of English judges, however, was to permit
question recurs whether the constraint laid by the
counsel to advise with a defendant as to the
Amendment upon the national courts expresses a
conduct of his case and to represent him in
rule so fundamental and essential to a fair trial,
collateral matters and as respects questions of law
and so, to due process of law, that it is made
arising upon the trial.16 In 1695 the rule was
obligatory upon the States by the Fourteenth
relaxed by statute17 to the extent of permitting one
Amendment. Relevant data on the subject are
afforded by constitutional and statutory provisions accused of treason the privilege of being heard by
subsisting in the colonies and the States prior to counsel. The rule forbidding the participation of
the inclusion of the Bill of Rights in the national counsel stood, however, as to indictments for
Constitution, and in the constitutional, legislative, felony, until 1836, when a statute accorded the
and judicial history of the States to the present right to defend by counsel against summary
date. These constitute the most authoritative convictions and charges of felony.18 In
sources for ascertaining the considered judgment misdemeanor cases and, after 1695, in
of the citizens of the States upon the question. prosecutions for treason, the rule was that the
defense must be conducted either by the defendant
14 Johnson v. Zerbst, 304 U.S. 458.
in person or by counsel, but that both might not
The Constitutions of the thirteen original States, as participate in the trial.19
they were at the time of federal union, exhibit 15 Chitty Criminal Law (5th Am. Ed.) Vol. 1,
great diversity in respect of the right to have p. 406.
counsel in criminal cases. Rhode Island had no
16 Chitty, supra, Vol. I, p. 407; Rex v.
constitutional provision on the subject until 1843,
Parkins, 1 C. P. 314.
North Carolina and South Carolina had none until
1868. Virginia has never had any. Maryland, in 17 Page 466 7 Will. 3, c. 3, § 1.
1776, and New York, in 1777, adopted provisions
18 Page 466 6 7 Will. 4, c. 114, §§ I and II.
to the effect that a defendant accused of crime
should be "allowed" counsel. A constitutional 19 Rex v. White, 3 Camp. N.P. 97; Regina v.
mandate that the accused should have a right to be Boucher, 8 C. P. 655.
heard by himself and by his counsel was adopted
by Pennsylvania in 1776, New Hampshire in In the light of this common law practice, it is
1774, by Delaware in 1782, and by Connecticut in evident that the constitutional provisions to the
1818. In 1780 Massachusetts ordained that the effect that a defendant should be "allowed"
defendant should have the right to be heard by counsel or should have a right "to be heard by
himself or his counsel at his election. In 1798 himself and his counsel," or that he might be heard

6
 Betts v. Brady 316 U.S. 455 (1942)

by "either or both," at his election, were intended Vol. I, pp. 356-7. An Act of 1777 of North
to do away with the rules which denied Carolina made no provision for

representation, in whole or in part, by counsel in appointment, but accorded defendants the

right to have counsel. Laws of North
criminal prosecutions, but were not aimed to
Carolina, 1789, pp. 40, 56. Rhode Island
compel the State to provide counsel for a
had no statute until 1798, when one was
defendant. At the least, such a construction by
passed in the words of the Sixth
State courts and legislators can not be said to lack
Amendment. Laws 1798, p. 80. South
467 reasonable basis. *467
Carolina, by Act of August 20, 1731,

The statutes in force in the thirteen original States limited appointment to capital cases.
Grimke's So. Car. Pub. Laws, 1682-1790,
at the time of the adoption of the Bill of Rights are
p. 130. Virginia, by Act of Oct. 1786,
also illuminating. It is of interest that the matter of
enacted with respect to one charged with
appointment of counsel for defendants, if dealt
treason or felony that "the court shall allow
with at all, was dealt with by statute rather than by
him counsel . . . if he desire it." Hening's
constitutional provision. The contemporary
Statutes of Virginia, 1785-1788, Vol. 12, p.
legislation exhibits great diversity of policy.20 343.
20 Connecticut had no statute, although it was
The constitutions of all the States, presently in
the custom of the courts to assign counsel
force, save that of Virginia, contain provisions
in all criminal cases. Swift, "System of
with respect to the assistance of counsel in
Laws, Connecticut," 1796, Vol. II, p. 392.
468 criminal trials. Those of nine *468 States21 may be
In Delaware Penn's Laws of 1719, c. XXII,
and in Pennsylvania the Act of May 31, said to embody a guarantee textually the same as
1718, § III (Mitchell and Flanders' Statutes that of the Sixth Amendment, or of like import. In
at Large of Penna., 1682-1801, Vol. III, p. the fundamental law of most States, however, the
201) provided for appointment only in case language used indicates only that a defendant is
of "felonies of death." Georgia has never not to be denied the privilege of representation by
had any law on the subject. Maryland had counsel of his choice.22
no such law at the time of the adoption of
21 Georgia (Art. I, Par. V); Iowa (Art. I, §
the Bill of Rights. An Act of 1777 in
Massachusetts gave the right to have 10); Louisiana (Art. I, § 9); Michigan

counsel appointed in cases of treason or (Dec. of Rights, Art. II, § 19); Minnesota

misprision of treason. Laws of the (Art. I, § 6); New Jersey (Art. I, § 8); North

Commonwealth of Massachusetts from Carolina (Art. I, § 11); Rhode Island (Art.

Nov. 28, 1780 to Feb. 28, 1807, c. LXXI, I, § 10); West Virginia (Art. III, § 14).

Vol. II, Appendix, p. 1049. By an Act of 22 Some assert the right of a defendant "to
Feb. 8, 1791, New Hampshire required
appear and defend in person and by
appointment in all cases where the
counsel." Arizona (Art. II, § 24); Colorado
punishment was death. Metcalf's Laws of
(Art. II, § 16); Illinois (Art. II, § 9);
New Hampshire, 1916, Vol. 5, pp. 596,
Missouri (Art. II, § 22); Montana (Art. III,
599. An Act of New Jersey of March 6,
§ 16); New Mexico (Art. II, § 14); South
1795, § 2, required appointment in the case
Dakota (Art. VI, § 7); Utah (Art. I, § 12);
of any person tried upon an indictment.
Wyoming (Art. I, § 10). Others phrase the
Acts of the General Assembly of the
right as that "to be heard by himself and
Session of 1794, c. DXXXII, p. 1012. New
[his] counsel": Arkansas (Art. II, § 10);
York apparently had no statute on the
Delaware (Art. I, § 7); Indiana (Art. I, §
subject. See Act. Feb. 20, 1787, Laws of
13); Kentucky (Bill of Rights, § 11);
New York, Sessions 1st to 20th (1798),

7
 Betts v. Brady 316 U.S. 455 (1942)

Pennsylvania (Art. I, § 9); Tennessee (Art. 24 Cutts v. State, 54 Fla. 21, 45 So. 491;
I, § 9); Vermont (Ch. I, Art. 10th); or "by McDonald v. Commonwealth, 173 Mass.
himself and by counsel": Connecticut (Art. 322, 53 N.E. 874; People v. Dudley, 173
I, § 9); or "by himself and counsel": New Mich. 389, 138 N.W. 1044; People v.
Hampshire (Bill of Rights, 15th); Williams, 225 Mich. 133, 195 N.W. 818;
Oklahoma (Art. II, § 20); Oregon (Art. I, § People v. Harris, 266 Mich. 317, 253 N.W.
11); Wisconsin (Art. I, § 7); or "by himself 312; People v. Crandell, 270 Mich. 124,
and counsel or either": Alabama (Art. I, § 258 N.W. 224; Commonwealth v. Smith,
6); "by himself or counsel or [by] both": 344 Pa. 41, 24 A.2d 1; State v. Sweeney, 48
Florida (Dec. of Rights, § 11); Mississippi S.D. 248, 203 N.W. 460; State v. Yoes, 67
(Art. III, § 26); South Carolina (Art. I, § W. Va. 546, 68 S.E. 181; cf. Pardee, v. Salt
18); Texas (Art. I, § 10). The verbiage Lake County, 39 Utah 482, 118 P. 122.
sometimes employed is: "to appear and
25 Alabama: Code (1940) Tit. 15, § 318;
defend in person and with counsel":
Campbell v. State, 182 Ala. 18, 62 So. 57;
California (Art. I, § 13), Idaho, (Art. I, §
Gilchrist v. State, 234 Ala. 73, 173 So.
13); North Dakota (Art. I, § 13); Ohio (Art.
651; Clark v. State, 239 Ala. 380, 195 So.
I, § 10); or "in person or by counsel";
260. Louisiana: Code Crim. Proc. (Dart,
Kansas (Bill of Rights, § 10); Nebraska
1932) Tit. XIII, Art. 143; State v. Davis,
(Art. I, § 11); Washington (Art. I, § 22).
171 La. 449, 131 So. 295. Maryland:
Nevada (Art. I, § 8) and New York (Art. I, §
Annotated Code (Flack, 1939), Art. 26,
6) add: "as in civil actions." Some
Par. 7, p. 1060; cf. the decision below and
constitutions formulate the right as one "to
Coates v. Maryland, 180 Md. 502, 25 A.2d
be heard by himself and his counsel at his
676. Mississippi: Annotated Code (1930)
election" or "himself and his counsel or
Crim. Proc., c. 21, § 1262; Laws 1934, c.
either at his election": Massachusetts (Part
303; Reed v. State, 143 Miss. 686, 109 So.
I, § 12), Maine (Art. I, § 6). Maryland
715; Robinson v. State, 178 Miss. 568, 173
(Dec. of Rights, Art. 21) states the right as
So. 451. Rhode Island: General Laws
that "to be allowed counsel."
1938, c. 625, § 62; Acts Resolves, 1891, c.
In three States, the guarantee, whether or not in 921, p. 165; State v. Hudson, 55 R.I. 141,
the exact phraseology of the Sixth Amendment, 179 A. 130. South Carolina: Code 1932,

has been held to require appointment in all cases Vol. 1, § 979; State v. Jones, 172 S.C. 129,
173 S.E. 77. Texas: Lopez v. State, 46
469 where the defendant *469 is unable to procure
Tex.Crim. 473, 80 S.W. 1016; Faggett v.
counsel.23 In six, the provisions (one of which is
State, 122 Tex.Crim. 399, 55 S.W.2d 842;
like the Sixth Amendment) have been held not to
Thomas v. State, 132 Tex.Crim. 549, 106
require the appointment of counsel for indigent S.W.2d 289; Austin v. State, 51 S.W. 249.
defendants.24 In eight, provisions, one of which is Vermont: Public Laws (1933) c. 57, §
the same as that of the Sixth Amendment, have 1424; c. 101, § 2327; c. 102, § 2370; State
evidently not been viewed as requiring such v. Gomez, 89 Vt. 490, 96 A. 190.
appointment, since the courts have enforced
In twelve States, it seems to be understood that the
statutes making appointment discretionary, or
constitutional provision does not require
obligatory only in prosecutions for capital offenses
470 appointment of *470 counsel, since statutes of
or felonies.25
greater or less antiquity call for such appointment
23 Elam v. Johnson, 48 Ga. 348; Delk v. State,
only in capital cases or cases of felony or other
99 Ga. 667, 26 S.E. 752; Fugate v. grave crime,26 or refer the matter to the discretion
Commonwealth, 254 Ky. 663, 72 S.W.2d
of the court.27 In eighteen States the statutes now
47; Carpenter v. Dane County, 9 Wis. 274.

8
 Betts v. Brady 316 U.S. 455 (1942)

require the court to appoint in all cases where Michigan, Statutes Ann. § 28. 1253;
defendants are unable to procure counsel.28 But Montana, Rev. Codes Ann. (1935) c. 73, §
11886; Nevada, Comp. Laws (1929) Cr. L.
471 this has not always been *471 the statutory
Proc. § 10883; New Jersey, N.J. Stat. Ann.
requirement in some of those States.29 And it
§ 2: 190-3; New York, Thompson's Laws
seems to have been assumed by many legislatures
(1939) Pt. II, Code of Crim. Proc. § 308;
that the matter was one for regulation from time to North Dakota, Comp. Laws (1913) Vol. II,
time as deemed necessary, since laws requiring § 8965; Ohio, Throckmorton's Code Ann.
appointment in all cases have been modified to (1940) § 13439-2; Oklahoma, Stats. Ann.
require it only in the case of certain offenses.30 Tit. 22, § 1271; Oregon, Comp. Laws Ann.
Vol. 3, § 26-804; South Dakota, Code
26 Arkansas: Steel McCampbell's Compiled
(1939) § 34.1901; Tennessee, Michie's
Laws of Arkansas Territory, 1835, "Crimes
Code (1938) § 11734; Utah, R.S. (1938)
and Misdemeanors," § 37, p. 194; Gantt's
Code Cr. Proc. § 105-22-12; Wyoming,
Digest of Ark. Stats. 1874, Crim. Proc. c.
R.S. (1931) § 33-501. Connecticut
43, Art. XII, § 1824, p. 410; Pope's Digest
provides official public defenders available
(1937), Vol. 1, c. 43, § 3877, p. 1180.
to all persons unable to retain counsel. G.S.
Delaware: Penn's Laws, c. XXII (1719);
(Revision of 1930), c. 335, § 6476.
Rev. Code (1935) c. 114, 4305-6. Kansas:
At least as early as 1903 (3 Edw. 7, c. 38)
Gen. Stats. 1868, c. 82, § 160, p. 845; Gen.
England adopted a Poor Prisoners' Defence
Stats. 1935, c. 62, § 1304, p. 1449. Maine:
Act, under which a rule was adopted
Act of March 8, 1826, § 6, p. 146; R.S.
whereby an Page 471 accused might
Apr. 17, 1857, c. 134, § 12, p. 713; R.S.
defend by counsel assigned by the court.
1930, c. 146, § 14, p. 1655. Minnesota: Act
Bowen-Rowlands, Criminal Proceedings,
of March 5, 1869, G.L. 1869, c. LXXII, §
London (1904) pp. 46-47. The existing
1; Mason's Minn. Stats. (1927) Vol. 2, c.
statute is the Poor Prisoners' Defence Act
94, § 9957. Missouri: Casselberry's Rev.
(1930) 20 21 Ga. 5, c. 32. See Archbold's
Stats. 1845, pp. 434, 443-4, 458; Rev.
Criminal Pleading, Evidence and Practice,
Stats. (1939) Crim. Proc. § 4003.
30th Ed. (1938) p. 167. Under this act a
Nebraska: Gen. Stats. 1873, c. 58, § 437, p.
poor defendant is entitled as of right to
821; Comp. Stat. (1929) Crim. Proc. Art.
counsel on a charge of murder, but
18, § 29-1803. New Hampshire: R.S. 1843,
assignment of counsel is discretionary in
Tit. XXVII, c. 225, p. 457; Pub. Laws
other cases.
(1926), c. 368, Laws 1937, c. 22.
Washington: Territorial Stats. 1881, c. 29 See e.g. earlier and more restricted statutes:
LXXXV, § 1063; Rem. Rev. Stats. Vol. 4, Idaho, Terr. Laws, 2d Sess., 1864, c. II, p.
c. 2, § 2305. 246; Iowa, Act of January 4, 1839, § 64;
27 Arizona: Code (1939) Art. 9, §§ 44-904, Korf v. Jasper County, 132 Iowa 682, 108
N.W. 1031; Michigan, Laws 1857, Act No.
44-905. Colorado: Colo. Stats. Annotated
109, p. 239; Montana, Act January 12,
(1935), Vol. 2, c. 48, § 502, p. 1148.
1872, c. IX, § 196; Nevada, Comp. L.
Maryland: Laws 1886, c. 46, p. 66; Anno.
1861-73, c. LIII. Changes in the statutes of
Code (Flack, 1939), Art. 26, par. 7.
other States might be cited. Compare Notes
28 California, Penal Code, Deering (1937), Pt. 20 and 28.
2, Tit. 6, c. 1, § 987; Idaho, Code Anno.
30 Louisiana. Compare Laws, 1855, Act No.
(1932) § 19-1412; Illinois, R.S. 1935, c.
121; State v. Ferris, 16 La. Ann. 424; State
38, ¶ 754; Iowa, Code 1939, c. 640, §
v. Bridges, 109 La. 530, 33 So. 589, with
13773; Kansas, Laws 1941, c. 291;
La. Code Crim. Proc. (Dart) 1932, Tit.

9
 Betts v. Brady 316 U.S. 455 (1942)

XIII, Art. 143. Nebraska. Compare Laws In this case there was no question of the
of 1869, p. 163, with Comp. Stats. (1929) § commission of a robbery. The State's case
29-1803. Washington. Compare Code of consisted of evidence identifying the petitioner as
Washington Terr. (1881) c. LXXXV, §
the perpetrator. The defense was an alibi.
1063 with Rem. Rev. Stats. Vol. 4, c. 2, §
Petitioner called and examined witnesses to prove
2305. And compare Texas Code Crim.
that he was at another place at the time of the
Proc. (1856), Pt. III, Arts. 466-7 with
commission of the offense. The simple issue was
Vernon's Stats. (1936), Art. 1917, and
the veracity of the testimony for the State and that
Lopez v. State, 46 Tex.Crim. 473, 80 S.W.
1016, and Thomas v. State, 132 Tex.Crim.
for the defendant. As Judge Bond says, the
549, 106 S.W.2d 289. accused was not helpless, but was a man forty-
three years old, of ordinary intelligence, and
This material demonstrates that, in the great ability to take care of his own interests on the trial
majority of the States, it has been the considered of that narrow issue. He had once before been in a
judgment of the people, their representatives and criminal court, pleaded guilty to larceny and
their courts that appointment of counsel is not a served a sentence and was not wholly unfamiliar
fundamental right, essential to a fair trial. On the with criminal procedure. It is quite clear that in
contrary, the matter has generally been deemed Maryland, if the situation had been otherwise and
one of legislative policy. In the light of this it had appeared that the petitioner was, for any
evidence, we are unable to say that the concept of reason, at a serious disadvantage by reason of the
due process incorporated in the Fourteenth 473 lack *473 of counsel, a refusal to appoint would
Amendment obligates the States, whatever may be have resulted in the reversal of a judgment of
their own views, to furnish counsel in every such conviction. Only recently the Court of Appeals has
472 case. Every court has power, if it deems *472 reversed a conviction because it was convinced on
proper, to appoint counsel where that course the whole record that an accused, tried without
seems to be required in the interest of fairness. counsel, had been handicapped by the lack of
representation.32
The practice of the courts of Maryland gives point
to the principle that the States should not be 32 Coates v. State, 180 Md. 502, 25 A.2d 676.
straight-jacketed in this respect, by a construction
of the Fourteenth Amendment. Judge Bond's To deduce from the due process clause a rule
opinion states, and counsel at the bar confirmed binding upon the States in this matter would be to
the fact, that in Maryland the usual practice is for impose upon them, as Judge Bond points out, a
the defendant to waive a trial by jury. This the requirement without distinction between criminal
petitioner did in the present case. Such trials, as charges of different magnitude or in respect of
Judge Bond remarks, are much more informal than courts of varying jurisdiction. As he says:
jury trials and it is obvious that the judge can "Charges of small crimes tried before justices of
much better control the course of the trial and is in the peace and capital charges tried in the higher
a better position to see impartial justice done than courts would equally require the appointment of
when the formalities of a jury trial are involved.31 counsel. Presumably it would be argued that trials
in the Traffic Court would require it." And,
31 Judge Bond adds: "Certainly my own
indeed, it was said by petitioner's counsel both
experience in criminal trials over which I
below and in this court, that as the Fourteenth
have presided (over 2000, as I estimate it),
Amendment extends the protection of due process
has demonstrated to me that there are fair
to property as well as to life and liberty, if we hold
trials without counsel employed for the
prisoners."

10
 Betts v. Brady 316 U.S. 455 (1942)

with the petitioner, logic would require the least an ordinary amount of intelligence." It is
furnishing of counsel in civil cases involving clear from his examination of witnesses that he
property. was a man of little education.

As we have said, the Fourteenth Amendment If this case had come to us from a federal court, it
prohibits the conviction and incarceration of one is clear we should have to reverse it, because the
whose trial is offensive to the common and Sixth Amendment makes the right to counsel in
fundamental ideas of fairness and right, and while criminal cases inviolable by the Federal
want of counsel in a particular case may result in a Government. I believe that the Fourteenth
conviction lacking in such fundamental fairness, Amendment made the Sixth applicable to the
we cannot say that the Amendment embodies an states.1 But this view, although often urged in
inexorable command that no trial for any offense, dissents, has never been accepted by a majority of
or in any court, can be fairly conducted and justice 475 this Court *475 and is not accepted today. A
accorded a defendant who is not represented by statement of the grounds supporting it is,
counsel. therefore, unnecessary at this time. I believe,
however, that, under the prevailing view of due
The judgment is
process, as reflected in the opinion just
Affirmed. announced, a view which gives this Court such
vast supervisory powers that I am not prepared to
474 *474
accept it without grave doubts, the judgment
below should be reversed.
MR. JUSTICE BLACK, dissenting, with whom
1 Discussion of the Fourteenth Amendment
MR. JUSTICE DOUGLAS and MR. JUSTICE
MURPHY concur. by its sponsors in the Senate and House
shows their purpose to make secure against
To hold that the petitioner had a constitutional invasion by the states the fundamental
right to counsel in this case does not require us to liberties and safeguards set out in the Bill
say that "no trial for any offense, or in any court, of Rights. The legislative history and
can be fairly conducted and justice accorded a subsequent course of the amendment to its
defendant who is not represented by counsel." final adoption have been discussed in

This case can be determined by a resolution of a Flack, "The Adoption of the Fourteenth
Amendment." Flack cites the
narrower question: whether in view of the nature
Congressional Page 475 debates,
of the offense and the circumstances of his trial
committee reports, and other data on the
and conviction, this petitioner was denied the
subject. Whether the amendment
procedural protection which is his right under the
accomplished the purpose its sponsors
Federal Constitution. I think he was.
intended has been considered by this Court

The petitioner, a farm hand, out of a job and on in the following decisions, among others:
O'Neil v. Vermont, 144 U.S. 323, dissent,
relief, was indicted in a Maryland state court on a
337; Maxwell v. Dow, 176 U.S. 581,
charge of robbery. He was too poor to hire a
dissent, 605; Twining v. New Jersey, 211
lawyer. He so informed the court and requested
U.S. 78, 98-99, dissent, 114.
that counsel be appointed to defend him. His
request was denied. Put to trial without a lawyer, This Court has just declared that due process of
he conducted his own defense, was found guilty, law is denied if a trial is conducted in such manner
and was sentenced to eight years' imprisonment. that it is "shocking to the universal sense of
The court below found that the petitioner had "at justice" or "offensive to the common and

11
 Betts v. Brady 316 U.S. 455 (1942)

fundamental ideas of fairness and right." On before conviction and sentence for the serious
another occasion, this Court has recognized that crime of robbery. As the Supreme Court of
whatever is "implicit in the concept of ordered Wisconsin said, in 1859, ". . . would it not be a
liberty" and "essential to the substance of a little like mockery to secure to a pauper these
hearing" is within the procedural protection solemn constitutional guaranties for a fair and full
afforded by the constitutional guaranty of due trial of the matters with which he was charged,
process. Palko v. Connecticut, 302 U.S. 319, 325, and yet say to him when on trial, that he must
327. employ his own counsel, who could alone render
these guaranties of any real permanent value to
The right to counsel in a criminal proceeding is
him. . . . Why this great solicitude to secure him a
"fundamental." Powell v. Alabama, 287 U.S. 45,
fair trial if he cannot have the benefit of counsel?"
70; Grosjean v. American Press Co., 297 U.S.
Carpenter v. Dane County, 9 Wis. 274, 276-277.
233, 243-244. It is guarded from invasion by the
Sixth Amendment, adopted to raise an effective Denial to the poor of the request for counsel in
barrier against arbitrary or unjust deprivation of proceedings based on charges of serious crime has
liberty by the Federal Government. Johnson v. long been regarded as shocking to the "universal
Zerbst, 304 U.S. 458, 462. sense of justice" throughout this country. In 1854,
for example, the Supreme Court of Indiana said:
An historical evaluation of the right to a full
"It is not to be thought of, in a civilized
hearing in criminal cases, and the dangers of
community, for a moment, that any citizen put in
denying it, were set out in the Powell case, where
jeopardy of life or liberty, should be debarred of
this Court said: "What . . . does a hearing include?
counsel because he was too poor to employ such
Historically and in practice, in our own country at
aid. No Court could be respected, or respect itself,
least, it has always included the right to the aid of
477 to sit and hear *477 such a trial. The defence of the
counsel when desired and provided by the person
poor, in such cases, is a duty resting somewhere,
476 asserting the right . . . Even the intelligent *476
which will be at once conceded as essential to the
and educated layman . . . lacks both the skill and
accused, to the Court, and to the public." Webb v.
knowledge adequately to prepare his defense, even
Baird, 6 Ind. 13, 18. And most of the other States
though he have a perfect one. He requires the
have shown their agreement by constitutional
guiding hand of counsel in every step in the
provisions, statutes, or established practice
proceedings against him. Without it, though he be
judicially approved, which assure that no man
not guilty, he faces the danger of conviction
shall be deprived of counsel merely because of his
because he does not know how to establish his
poverty.2 Any other practice seems to me to defeat
innocence." Powell v. Alabama, supra, 68-69. Cf.
the promise of our democratic society to provide
Johnson v. Zerbst, supra, 462-463.
equal justice under the law.
A practice cannot be reconciled with "common 2 In thirty-five states, there is some clear
and fundamental ideas of fairness and right,"
legal requirement or an established practice
which subjects innocent men to increased dangers that indigent defendants in serious non-
of conviction merely because of their poverty. capital as well as capital criminal cases (
Whether a man is innocent cannot be determined e.g., where the crime charged is a felony, a
from a trial in which, as here, denial of counsel "penitentiary offense," an offense
has made it impossible to conclude, with any punishable by imprisonment for several
satisfactory degree of certainty, that the years) be provided with counsel on request.
defendant's case was adequately presented. No one In nine states, there are no clearly
questions that due process requires a hearing controlling statutory or constitutional

12
 Betts v. Brady 316 U.S. 455 (1942)

provisions and no decisive reported cases 11886. NEBRASKA: General Statutes, 1873, c.
on the subject. In two states, there are dicta 58, § 437; Compiled Stat. 1929, § 29-1803.
in judicial decisions indicating a NEVADA: Act of November 26, 1861 (Compiled
probability that the holding of the court
Laws, 1861-1873, Vol. I, 477, 493); Compiled
below in this case would be followed under
Laws, 1929, Vol. 5, § 10883. NEW HAMPSHIRE:
similar circumstances. In only two states
Laws, 1907, c. 136; Laws, 1937, c. 22. NEW
(including the one in which this case arose)
JERSEY: Act of March 6, 1795, § 2; New Jersey
has the practice here upheld by this Court
Stat. § 2.190-3. NEW YORK: Code of Criminal
been affirmatively sustained. Appended to
this opinion is a list of the several states
Procedure, § 308 (enacted in 1881, still in force).
divided into these four categories. See People v. Supervisors of Albany County, 28
How. Pr. 22, 24 (1864). NORTH DAKOTA:
APPENDIX Dakota Territory Code of Procedure, 1863, § 249
(Rev. Codes, 1877, Criminal Procedure, 875);
I. States which require that indigent defendants in
Compiled Laws, 1913, Vol. II, §§ 8965, 10721.
noncapital as well as capital criminal cases be
OHIO: Act of February 26, 1816, § 14 (Chase,
provided with counsel on request:
Statutes of Ohio, 1788-1833, Vol. II, 982);
A. By Statute. ARIZONA: Revised Statutes of Throckmorton's Ohio Code Ann. 1940, Vol. II, §
Arizona Territory, 1901, Penal Code, Pt. II, Title 13439-2. OKLAHOMA: Oklahoma Territorial
VII, § 858; Arizona Code Ann. 1939, Vol. III, § Stat. 1890, c. 70, § 10; Stat. Ann. 1941 Supp.,
44-904. ARKANSAS: Compiled Laws, Arkansas Title 22, § 464. OREGON: Act of October 19,
Territory, 1835, Crimes and Misdemeanors, § 37; 1864 (General Laws, 1845-1864, c. 37, § 381;
Pope's Digest, 1937, Vol. I, c. 43, § 3877. Laws 1937, c. 406 (Compiled Laws Ann., Vol. III,
CALIFORNIA: California Penal Code of 1872, § § 26-804). SOUTH DAKOTA: Dakota Territory
987; Deering's Penal Code, 1937, § 987. IDAHO: Code of Procedure, 1863, § 249 (Rev. Codes,
Territorial Criminal Practice Act, 1864, § 267; 1877, Criminal Procedure 875); Code of 1939,
Idaho Code, 1932, §§ 19-1412, 19-1413. Vol. II, § 34.1901. TENNESSEE: Code of 1857-
ILLINOIS: Rev. Stat. 1874, Criminal Code, § 422; 479 1858, §§ 5205, 5206; Code of 1938, *479 §§
478 Jones's Ill. Stat. Ann. 1936, § 37.707. *478 Cf. 11733, 11734. UTAH: Laws of Territory of Utah,
Laws, 1933, 430-431. See also, Vise v. County of 1878, Criminal Procedure, § 181; Rev. Stat. 1933,
Hamilton, 19 Ill. 78, 79 (1857). IOWA: Territorial § 105-22-12. WASHINGTON: Statutes of
Laws, 1839, Courts, § 64; Iowa Code, 1939, § Territory of Washington, 1854, Criminal Practice
13773. KANSAS: See Compilation published in Act, § 89; Remington's Revised Statutes, 1932,
1856 as S. Doc. No. 23, 34th Cong., 1st Sess., 520 Vol. IV, §§ 2095, 2305. WYOMING: Laws of
(c. 129, Art. V, § 4). Laws, 1941, c. 291. Wyoming Territory, 1869, Criminal Procedure, §
LOUISIANA: Act of May 4, 1805, of the 98; Rev. Stat. 1931, § 33-501.
Territory of Orleans, § 35; Dart's Louisiana Code
B. By judicial decision or established practice
of Criminal Procedure, 1932, Title XIII, Art. 143.
judicially approved. CONNECTICUT: For an
MINNESOTA: Minnesota General Laws, 1869, c.
account of early practice in Connecticut, see
LXXII, § 1; Mason's Minnesota Statutes, 1927, §§
Zephaniah Swift "A System of the Laws of the
9957, 10667. MISSOURI: Digest of Laws of
State of Connecticut," Vol. II, 392: "The chief
Missouri Territory, 1818, Crimes and
justice then, before the prisoner is called upon to
Misdemeanours, § 35; Rev. Stat. 1939, § 4003.
plead, asks the prisoner if he desires counsel,
MONTANA: Montana Territory Criminal Practice
which if requested, is always granted, as a matter
Act of 1872, § 196 (Laws of Montana, Codified
of course. On his naming counsel, the court will
Stat. 1871-1872, 220); Revised Code, 1935, §

13
 Betts v. Brady 316 U.S. 455 (1942)

appoint or assign them. If from any cause, the II. States which are without constitutional
prisoner decline to request or name counsel, and a provision, statutes, or judicial decisions clearly
trial is had, especially in the case of minors, the establishing this requirement:
court will assign proper counsel. When counsel
COLORADO: General Laws, 1877, §§ 913-916;
are assigned, the court will enquire of them,
Colorado Stat. Ann. 1935, Vol. 2, c. 48, §§ 502,
whether they have advised with the prisoner, so
505, as amended by Laws of 1937, 498, § 1. See
that he is ready to plead, and if not, will allow
Abshier v. People, 87 Colo. 507, 517, 289 P. 1081.
them proper time for that purpose. But it is usually
DELAWARE: See 6 Laws of Delaware 741; 7 id.
the case that the prisoner has previously employed
410; Rev. Code, 1935, §§ 4306, 4310. MAINE:
and consulted counsel, and of course is prepared
See Rev. Stat. 1857, 713; Rev. Stat. 1930, c. 146, §
to plead." See Powell v. Alabama, 287 U.S. 45,
14. MASSACHUSETTS: See McDonald v.
footnote, 63-64. See also, Connecticut General
Commonwealth, 173 Mass. 322, 327, 53 N.E. 874
Statutes, Revision of 1930, §§ 2267, 6476.
(1899). NEW MEXICO. NORTH CAROLINA.
FLORIDA: Cutts v. State, 54 Fla. 21, 23, 45 So.
RHODE ISLAND: See State v. Hudson, 55 R.I.
491 (1907). See Compiled General Laws, 1927, §
141, 179 A. 130 (1935); General Laws, 1938, c.
8375 (capital crimes). INDIANA: Webb v. Baird,
625, § 62. SOUTH CAROLINA: See State v.
6 Ind. 13, 18 (1854). See also Knox County
Jones, 172 S.C. 129, 130, 173 S.E. 77 (1934);
Council v. State ex rel. McCormick, 217 Ind. 493,
Code, 1932, Vol. I, § 980. VERMONT.
497-498, 29 N.E.2d 405 (1940); State v.
Hilgemann, 218 Ind. 572, 34 N.E.2d 129, 131 III. States in which dicta of judicial opinions are in
(1941). MICHIGAN: People v. Crandell, 270 harmony with the decision by the court below in
Mich. 124, 127, 258 N.W. 224 (1935). this case:
PENNSYLVANIA: Commonwealth v. Richards,
ALABAMA: Gilchrist v. State, 234 Ala. 73, 74,
111 Pa. Super. 124, 169 A. 464 (1933). See
173 So. 651. MISSISSIPPI: Reed v. State, 143
Commonwealth ex rel. McGlinn v. Smith, 344 Pa.
Miss. 686, 689, 109 So. 715.
41, 49, 59, 24 A.2d 1. VIRGINIA: Watkins v.
Commonwealth, 174 Va. 518, 521-525, 6 S.E.2d IV. States in which the requirement of counsel for
480 670 (1940). *480 WEST VIRGINIA: State v. indigent defendants in non-capital cases has been
Kellison, 56 W. Va. 690, 692-693, 47 S.E. 166 affirmatively rejected:
(1904). WISCONSIN: Carpenter v. Dane County,
9 Wis. 274 (1859). See Stat. 1941, § 357.26. MARYLAND: See, however, Coates v. State, 180
Md. 502, 25 A.2d 676. TEXAS: Gilley v. State,
C. By constitutional provision. GEORGIA: 114 Tex.Crim. 548, 26 S.W.2d 1070. But cf. Brady
Constitution of 1865, Art. 1, Par. 8. See Martin v. v. State, 122 Tex.Crim. 275, 278, 54 S.W.2d 513 .
Georgia, 51 Ga. 567, 568 (1874). KENTUCKY:
481 *481
Kentucky Constitution, § 11. See Fugate v.
Commonwealth, 254 Ky. 663, 665, 72 S.W.2d 47
(1934).

14