1. Petitioner, a 57-year-old man, pleaded guilty in a state
court to two indictments for the noncapital offense of "taking
indecent liberties with children," and was sentenced to prison for
one to 20 years for each offense. The indictments were in simple
language, and easy to understand, and there was no claim that
petitioner failed to understand them or that he was incapable of
intelligently and competently pleading guilty. The records showed
that petitioner appeared "in his own proper person" and that,
before accepting his pleas of guilty, the court explained the
consequences and penalties; but the records were silent on the
subject of counsel for his defense.
Held:
(a) In the circumstances of this case, such silence in the
records as to counsel for the defense does not suffice to
invalidate the sentences under the due process clause of the
Fourteenth Amendment. Pp.
333 U. S. 644,
333 U. S.
670-677.
(b) In the absence of any showing beyond that in the records in
this case, the due process clause of the Fourteenth Amendment did
not require the state court to inquire as to petitioner's desire to
be represented by counsel, his ability to procure counsel, or his
desire to have counsel assigned to him; nor did it require the
state court to offer or assign counsel to him. Pp.
333 U. S. 644,
333 U. S.
670-677.
2. The due process clause of the Fourteenth Amendment does not
require the several states to conform the procedure of their state
criminal trials to the precise procedure of the federal courts,
even to the extent that the procedure of the federal courts is
prescribed by the Federal Constitution or Bill of Rights. Pp.
333 U. S. 649,
333 U. S.
656.
Page 333 U. S. 641
3. It has reference, rather, to a standard of process that may
cover many varieties of processes that are expressive of differing
combinations of historical or modern, local, or other juridical
standards, provided they do not conflict with the "fundamental
principles of liberty and justice which lie at the base of all our
civil and political situations." P.
333 U. S.
649.
4. It leaves room for much of the freedom which, under the
Constitution and in accordance with its purposes, was originally
reserved to the states for their exercise of their own police
powers and for their control over the procedure to be followed in
criminal trials in their respective courts in the light of their
respective histories and needs. Pp.
333 U. S.
649-653,
333 U. S. 663,
333 U. S.
675.
5. It is descriptive of a broad regulatory power over each state
and of of a major transfer by the states to the United States of
the primary and preexisting power of the states over court
procedures in state criminal cases. P.
333 U. S.
653.
6. Because the Constitution, during nearly 80 formative years,
permitted each state to establish, maintain, and accustom its
people to its own forms of "due process of law," a substantial
presumption arises in favor of, rather than against, the lawfulness
of those procedures, and in favor of their right to continued
recognition by the Federal Government as "due process of law." P.
333 U. S.
653.
7. While such a presumption does not arise in favor of any
practice against which the Fourteenth Amendment was particularly
directed, there is no reason to feel that it was particularly
directed against the practice involved in this case. Pp.
333 U. S.
653-654.
8. A procedure followed by a state in criminal trials should not
be held to violate the standard of permissible process of law
broadly recognized by the Fourteenth Amendment unless it violates
"the very essence of a scheme of ordered liberty" and its
continuance would "violate a
principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental.'" P. 333 U. S.
659.
9. Rule 44 of the Federal Rules of Criminal Procedure,
pertaining to the assignment of counsel to defendants in criminal
cases in federal courts, cannot be regarded as defining, even by
analogy, the minimum requirement of due process for the states
under the Fourteenth Amendment. Pp.
333 U. S.
662-663.
10. The Fourteenth Amendment does not authorize this Court to
require all states to enforce in substance either Rule 44 of the
Federal Rules of Criminal Procedure or § 203 of the proposed Code
of Criminal Procedure recommended by the American Law Institute. P.
333 U. S.
665.
Page 333 U. S. 642
11. It is not the province of this Court to prescribe which
procedure it considers preferable among many permissible procedures
which could be followed by a state court in connection with counsel
for the defense of a party accused of a state crime. P.
333 U. S.
670.
12. It is the province of this Court to decide whether the
practice followed by a state court in a particular case, although
admittedly in conformity with state law, was so clearly at variance
with the procedure constituting "due process of law" under the
Fourteenth Amendment that the judgments must be completely
invalidated. P.
333 U. S.
670.
13. The common law record of a criminal trial in a state court
for a noncapital offense is not to be considered unreliable solely
because it is almost exactly in the language of the state statute
prescribing the procedure in such cases. P.
333 U. S.
670.
14. In passing upon claims of denial of due process of law
contrary to the Fourteenth Amendment in state criminal trials,
doubts should be resolved in favor of the integrity, competence,
and proper performance of their official duties by the judge and
the state's attorney lawfully chosen to discharge serious public
responsibilities under their oaths of office. Pp.
333 U. S.
671-672.
15. If any presumption is to be indulged as a result of silence
regarding counsel for the defense in the record of a state criminal
trial for a noncapital offense, it should be presumed that the
state court constitutionally discharged, rather than
unconstitutionally disregarded, its state and federal duties to the
defendant, including those relating to his right, if any, to the
assistance of counsel. P.
333 U. S.
672.
16. Affirmance of the sentences by the state supreme court
conclusively established their compliance with state law. P.
333 U. S.
668.
17. While such a finding of compliance with state law is not
necessarily sufficient to satisfy the requirements of due process
under the Fourteenth Amendment, it is helpful, in measuring
compliance with the latter, to know exactly what were the
requirements of state law. Pp.
333 U. S.
668-670.
18. In view of the requirements of the state statutes (quoted in
the opinion at pp.
333 U. S.
668-670), the affirmance of the sentences by the state
supreme court, and the absence of findings to the contrary, the
silence of the records is adequate ground for the minimum
conclusion that petitioner did not request counsel and did not
state under oath that he was "unable to procure counsel." Pp.
333 U. S.
672-673.
19. In the absence of any request by petitioner for counsel, and
in the absence of any statement by him that he was unable to
procure counsel, the court did not violate the requirements of due
process
Page 333 U. S. 643
of law under the Fourteenth Amendment by the procedure which it
followed, and which accorded with the procedure approved by the
state for noncapital cases such as these. Pp.
333 U. S.
673-674.
20. It is not necessary to consider whether petitioner, by his
plea of guilty or otherwise, affirmatively waived any right to
counsel, for no constitutional right to the assistance of counsel
had arisen in his favor. P.
333 U. S.
673.
21. Since the offenses with which petitioner was charged were of
a noncapital nature, the due process clause of the Fourteenth
Amendment, in and of itself, did not require the state trial court,
in the circumstances of these cases to initiate an inquiry into his
desire to be represented by counsel or into his ability to obtain
counsel, nor, in the event of his inability to obtain counsel, did
it require the trial court to assign counsel to conduct his defense
-- though it would have been required both by the state statute and
the Fourteenth Amendment to take some such steps if he had been
charged with a capital offense. P.
333 U. S.
674.
396 Ill. 588, 72 N.E.2d 813, affirmed.
The Supreme Court of Illinois affirmed petitioner's convictions
under two indictments for the noncapital offense of "taking
indecent liberties with children." 396 Ill. 588, 72 N.E.2d 813.
This Court granted certiorari. 332 U.S. 756.
Affirmed, p.
333 U. S.
677.
MR. JUSTICE BURTON delivered the opinion of the Court.
In the Circuit Court of La Salle County, Illinois, the
petitioner, Roy Bute, pleaded guilty to the crime of "taking
indecent liberties with children," as charged in each of two
indictments, and, on each plea, was sentenced to confinement in the
Illinois State Penitentiary for not
Page 333 U. S. 644
less than one nor more than 20 years, the sentences to run
consecutively. Each common law record is silent on the subject of
counsel for the petitioner's defense. The issue here is whether or
not each state sentence shall be held to have been imposed in
violation of the due process clause of the Fourteenth Amendment to
the Constitution of the United States [
Footnote 1] because each common law record shows that the
petitioner appeared "in his own proper person" and does not show
that the court inquired as to the petitioner's desire to be
represented by counsel, or his ability to procure counsel, or his
desire to have counsel assigned to him to assist him in his
defense, or that such counsel was offered or assigned to him. We
hold that such a silence in the respective records does not suffice
to invalidate the sentences. We hold further that, in the absence
of any showing beyond that in these records, the due process clause
of the Fourteenth Amendment did not require the Illinois court to
make the inquiries or the offer or assignment of counsel now
claimed to have been the right of the petitioner.
At the time of these indictments, June 17, 1938, the petitioner
was 57 years old. Each indictment, in its first count, charged him
with taking indecent liberties on May 19, 1938, with a girl under
the age of 15, and, in its second count, with attempting to do so.
The first indictment related to a girl of eight, and the second to
a girl of 11. The offenses charged were violations of Ill.Rev.Stat.
c. 38, § 109 (1937). [
Footnote
2]
Page 333 U. S. 645
The intelligibility of the indictments is evident from the
following language quoted from the first:
"That Roy Bute, late of said County, on to-wit: the 19th day of
May in the year of our Lord one thousand nine hundred and
thirty-eight at and within the said County of La Salle, the said
Roy Bute being a male person of the age of seventeen (17) years and
upwards, did then and there unlawfully and feloniously take certain
immoral, improper, and indecent liberties with a certain female
child, under the age of fifteen(15) years, and of the age of eight
(8) years, to-wit, . . . with intent of arousing, appealing to, and
gratifying the lust, passion and sexual desires of him the said Roy
Bute contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the same the
Illinois. [
Footnote 3]"
The material portions of the records in these cases are
identical, except for the names and ages of the children. They
contain all that was before the Supreme Court of
Page 333 U. S. 646
Illinois, or that is before this Court. The following appears in
each:
"
ARRAIGNMENT AND PLEA OF GUILTY -- June 20, 1938"
"Now on this day come the said People by Taylor E. Wilhelm,
State's Attorney, and the said defendant in his own proper person
also comes; Whereupon the said defendant is furnished with a copy
of the indictment, a list of witnesses and jurors herein."
"And the said defendant being now arraigned before the bar of
this Court moves the Court for leave to enter his plea of Guilty of
the crime of taking indecent liberties with children in manner and
form as charged in the first count of the indictment herein, and
the Court having admonished and explained to the said defendant the
consequences and penalties, which will result from said plea, and
the said defendant still persisting in his desire to enter his plea
of guilty to the crime of taking indecent liberties with children,
in manner and form as charged in the first count of the indictment
herein, the court grants such leave."
"Thereupon the said defendant enters his plea of guilty of the
crime of taking indecent liberties with children, in manner and
form as charged in the first count of the indictment herein."
"Thereupon the Court finds the age of the said defendant to be
fifty-seven (57) years."
"
JUDGMENT"
"Now again on this day come the said People by Taylor E.
Wilhelm, State's Attorney, and the said defendant Roy Bute, in his
own proper person also comes, and the said defendant, Roy Bute, not
saying anything further why the judgment of the Court
Page 333 U. S. 647
should not now be pronounced against him on his plea of guilty
of the crime of taking indecent liberties with children in manner
and form as charged in the first count of the indictment herein,
heretofore entered herein."
"Whereupon it is Ordered by the Court that the said defendant,
Roy Bute, be and he is hereby sentenced on said plea of guilty as
aforesaid to confinement in the Illinois State Penitentiary at
Joliet for a period of not less than one (1) year, nor more than
twenty (20) years."
In October, 1946, the petitioner, while serving his sentence in
the Illinois State Penitentiary, and appearing
pro se,
filed in the Supreme Court of Illinois motions asking leave "to Sue
as a Poor Person for Writ of Error . . ." to review each of the
original proceedings. These were granted, and he filed his
petitions,
pro se, based upon the common law records in
the respective cases. He relied particularly upon the claim that he
had been denied representation by counsel, that the trial court had
not advised him of his rights or of his right to the assistance of
counsel, and that he had been rushed to trial with such expedition
as to deprive him of a fair and impartial trial, all of which
rights he claimed were guaranteed to him by the State and Federal
Constitutions.
The Supreme Court of Illinois affirmed both judgments. 396 Ill.
588, 72 N.E.2d 813. It denied expressly each of the above-mentioned
claims, and denied a rehearing. We granted certiorari in
recognition of the frequently arising constitutional principle
involved. 332 U.S. 756. The petitioner's presentations,
pro
se, were marked with professional accuracy and clarity, but
the petition for certiorari states that the petitioner is ignorant
of the law as he was at the time of his trial, and that the
documents filed by him
pro se had been prepared for him.
We
Page 333 U. S. 648
appointed a member of the Bar of this Court to act as counsel
for the petitioner here, and the petitioner's claims have been
fully and competently presented to this Court.
"
EFFECT OF FOURTEENTH AMENDMENT"
The cases turn upon the meaning of "due process of law" under
the Fourteenth Amendment in relation to the assistance of counsel
for the defense of the accused in state criminal trials such as
these. In
Powell v. Alabama, 287 U. S.
45, this Court granted relief in a group of capital
cases which demonstrated the essential need for applying the full
force of the Fourteenth Amendment to the invalidation of
purportedly valid judgments rendered in a state court under the
circumstances there shown. Those and other less extreme cases have
well illustrated the kind of service to the cause of justice which
can be rendered by this Court in thus giving effect to the
Fourteenth Amendment.
"The due process of law clause in the Fourteenth Amendment does
not take up the statutes of the several states and make them the
test of what it requires; nor does it enable this court to revise
the decisions of the state courts on questions of state law. What
it does require is that state action, whether through one agency or
another, shall be consistent with the fundamental principles of
liberty and justice which lie at the base of all our civil and
political institutions, and not infrequently are designated as 'law
of the land.' Those principles are applicable alike in all the
states, and do not depend upon or vary with local legislation."
Hebert v. Louisiana, 272 U. S. 312,
272 U. S.
316-317.
"This court has never attempted to define with precision the
words 'due process of law,' nor is it necessary to do so in this
case. It is sufficient to say that
Page 333 U. S. 649
there are certain immutable principles of justice, which inhere
in the very idea of free government, which no member of the Union
may disregard, as that no man shall be condemned in his person or
property without due notice and an opportunity of being heard in
his defence."
Holden v. Hardy, 169 U. S. 366,
169 U. S.
389-390.
The foregoing statements were referred to with approval in
Powell v. Alabama, supra, at pp.
287 U. S. 67,
287 U. S.
71-72.
The present case, on the other hand, illustrates equally well
the kind of judgments by a state court that should not be
invalidated as lacking in the due process of law required by the
Fourteenth Amendment. This is so although the procedure followed,
in 1938, by the state court in the instant cases, as to counsel for
the accused might not have satisfied the practice then required of
a federal court in the case of comparable federal crimes. The
Fourteenth Amendment, however, does not say that no state shall
deprive any person of liberty without following the
federal process of law as prescribed for the federal
courts in comparable federal cases. It says merely "nor shall any
State deprive any person of life, liberty, or property, without due
process of law. . . ." This due process is not an equivalent for
the process of the federal courts, or for the process of any
particular state. It has reference, rather, to a standard of
process that may cover many varieties of processes that are
expressive of differing combinations of historical or modern,
local, or other juridical standards, provided they do not conflict
with the "fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions. . . ."
Hebert v. Louisiana, supra, at
272 U. S. 316.
This clause in the Fourteenth Amendment leaves room for much of the
freedom which, under the Constitution of the United States and in
accordance with its purposes, was originally reserved to the states
for their exercise of
Page 333 U. S. 650
their own police powers and for their control over the procedure
to be followed in criminal trials in their respective courts. It
recognizes that differences arise naturally between the procedures
in the state courts and those in the federal courts. [
Footnote 4]
One of the major contributions to the science of government that
was made by the Constitution of the United States was its division
of powers between the states and the Federal Government. The
compromise between state rights and those of a central government
was fully considered in securing the ratification of the
Constitution in 1787 and 1788. [
Footnote 5] It was emphasized in the "Bill of Rights,"
ratified in 1791. In the ten Amendments constituting such Bill,
additional restrictions were placed upon the Federal Government,
and particularly upon procedure in the federal courts. [
Footnote 6] None was placed upon
Page 333 U. S. 651
the states. On the contrary, the reserved powers of the states
and of the people were emphasized in the Ninth and Tenth
Amendments. [
Footnote 7] The
Constitution was conceived in large part in the spirit of the
Declaration of Independence, which declared that, to secure such
"unalienable Rights" as those of
"Life, Liberty, and the pursuit of Happiness. . . . ,
Governments are instituted among Men, deriving their just powers
from the consent of the governed. . . ."
It sought to keep the control over individual rights close to
the people through their states. While there have been
modifications made by
Page 333 U. S. 652
the States, the Congress, and the courts in some of the
relations between the Federal Government and the people, there has
been no change that has taken from the states their underlying
control over their local police powers and state court procedures.
They retained this control from the beginning, and, in some states,
local control of these matters long antedated the Constitution. The
states and the people still are the repositories of the "powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States. . . ." [
Footnote 8] The underlying control over the procedure in
any state court, dealing with distinctly local offenses such as
those here involved, consequently remains in the state. The
differing needs and customs of the respective states, and even of
the respective communities within each state, emphasize the
principle that familiarity with, and complete understanding of,
local characteristics, customs, and standards are foundation stones
of successful self-government. Local processes of law are an
essential part of any government conducted by the people. No
national authority, however benevolent, that governs over
130,000,000 people in 48 states can be as closely in touch with
those who are governed as can the local authorities in the several
states and their subdivisions. The principle of "Home Rule" was an
axiom among the authors of the Constitution. After all, the vital
test of self-government is not so much its satisfactoriness weighed
in the scales of outsiders as it is its satisfactoriness weighed in
the scales of "the governed." [
Footnote 9] While, under the Constitution of
Page 333 U. S. 653
the United States, the Federal Government, as well as each state
government, is, at bottom, a government by the people,
nevertheless, the federal sphere of government has been largely
limited to certain delegated powers. The burden of establishing a
delegation of power to the United States or the prohibition of
power to the states is upon those making the claim. This point of
view is material in the instant cases in interpreting the
limitation which the Fourteenth Amendment places upon the processes
of law that may be practiced by the several states, including
Illinois. In our opinion, this limitation is descriptive of a broad
regulatory power over each state, and not of a major transfer by
the states to the United States of the primary and preexisting
power of the states over court procedures in state criminal
cases.
Until the taking effect of the Fourteenth Amendment in 1868,
there was no question but that the states were free to establish
their own court procedures. This freedom included state practice as
to the assistance of counsel to be permitted or assigned to the
accused for his defense in state criminal cases. Because the
Constitution of the United States, during nearly 80 formative
years, thus permitted each state to establish, maintain, and
accustom its people to that state's own forms of "due process of
law," a substantial presumption arises in favor of, rather than
against, the lawfulness of those procedures, and in favor of their
right to continued recognition by the Federal Government as "due
process of law." While such a presumption
Page 333 U. S. 654
does not arise in favor of any practice against which the
Fourteenth Amendment was particularly directed, there is no reason
to feel that, in 1868, such Amendment was particularly directed
against the practice now before us.
I
LLINOIS CONSTITUTIONAL PROVISIONS
From the inception of their statehood, the people of Illinois
have recognized their own responsibility for the preservation of
local due process of law and of the civil rights of individuals
within the jurisdiction of that State. They dealt at length with
such matters in their original constitution of 1818. In Article
VIII they provided --
"That the general, great and essential principles of liberty and
free government may be recognized and unalterably established, we
declare:"
"
* * * *"
"§ 9. That, in all criminal prosecutions, the accused hath a
right to be heard by himself and counsel; to demand the nature and
cause of the accusation against him; to meet the witnesses face to
face; to have compulsory process to compel the attendance of
witnesses in his favor, and, in prosecutions by indictment or
information, a speedy public trial by an impartial jury of the
vicinage, and that he shall not be compelled to give evidence
against himself. [
Footnote
10]"
Reprinted in Ill.Rev.Stat. (1937).
Page 333 U. S. 655
The Illinois Constitution of 1848 contained a comparable
"Declaration of Rights" in Article XIII. Among that Article's 26
sections were §§ 8 and 9, substantially readopting language used in
§§ 8 and 9 of Article VIII of the original constitution. [
Footnote 11]
In the Illinois Constitution of 1870, a "Bill of Rights" was set
forth in Article II dealing with these subjects and including §§ 2
and 9 in the following form:
"
* * * *"
"2. No person shall be deprived of life, liberty or property,
without due process of law."
"9. In all criminal prosecutions, the accused shall have the
right to appear and defend in person and by counsel, to demand the
nature and cause of the accusation, and to have a copy thereof, to
meet the witnesses face to face, and to have process to compel
Page 333 U. S. 656
the attendance of witnesses in his behalf, and a speedy public
trial by an impartial jury of the county or district in which the
offense is alleged to have been committed. Reprinted in
Ill.Rev.Stat. (1937)."
These latter provisions were in effect in Illinois at the time
of the trial of the instant cases. There is and can be no question
raised here but that the procedure in the instant cases conformed
to the Illinois Constitution as interpreted by the Supreme Court of
that State.
The Constitution of the United States thus left the power to
regulate the procedure as to the assistance of counsel for the
defense of the accused in state criminal cases to the discretion of
the respective states at least until 1868. The Fourteenth Amendment
then was adopted to meet the crying needs of that time. [
Footnote 12]
JUDICIAL INTERPRETATION OF FOURTEENTH AMENDMENT
After exhaustive consideration of the subject, this Court has
decided that the Fourteenth Amendment does not, through its due
process clause or otherwise, have the effect of requiring the
several states to conform the procedure of their state criminal
trials to the precise procedure of the federal courts, even to the
extent that the procedure of federal courts is prescribed by the
Federal Constitution or Bill of Rights. There is nothing in the
Fourteenth Amendment specifically stating that the long
recognized
Page 333 U. S. 657
and then existing power of the states over the procedure of
their own courts in criminal cases was to be prohibited, or even
limited. Unlike the Bill of Rights, the Fourteenth Amendment made
no mention of any requirement of grand jury presentments or
indictments as a preliminary step in certain criminal prosecutions;
any universal prohibition against the accused being compelled, in a
criminal case, to be a witness against himself; any jurisdictional
requirement of juries in all criminal trials; any guaranty to the
accused that he have a right to the assistance of counsel for his
defense in all criminal prosecutions; or any need to observe the
rules of the common law in the reexamination of all facts tried by
a jury. [
Footnote 13] In
spite of such omissions, it is claimed here,
Page 333 U. S. 658
on behalf of the petitioner, that, even though the failure of
the state court in these cases to inquire of the accused as to his
desire to be represented by counsel, or his ability to procure
counsel, or his desire to have counsel assigned to him to assist
him in his defense, and even though the failure of the state court
in these cases to offer or assign counsel to the accused for his
defense may have satisfied the Illinois law and have amounted to
"due process of law" under the Illinois Constitution, [
Footnote 14] yet such practices did
not satisfy the "due process of law" required of the states by the
Fourteenth Amendment to the Constitution of the United States.
To sustain this claim, it is necessary for the petitioner to
establish that, in spite of the constitutionality of the process of
law developed by Illinois in its own criminal cases, prior to 1868,
yet that same Illinois process of law, after 1868, no longer is
constitutionally valid as "due process of law" under the Fourteenth
Amendment. We recognize that the Fourteenth Amendment, as part of
the supreme law of the land under Article VI of the original
Constitution, supersedes "any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding." The important question
remains, however: what shall be considered to be to the contrary?
It is the established policy of both the State and Federal
Governments to treat possible conflicts between their powers in
such a
Page 333 U. S. 659
manner as to produce as little conflict and friction as
possible. So, here, the procedure followed by Illinois should not
be held to violate the standard of permissible process of law
broadly recognized by the Fourteenth Amendment unless the Illinois
procedure violates "the very essence of a scheme of ordered
liberty," and that to continue it would "violate a
principle of
justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.'" Cardozo, J., in Palko v.
Connecticut, 302 U. S. 319,
302 U. S. 325,
with quotation from his opinion in Snyder v.
Massachusetts, 291 U. S. 97,
291 U. S. 105.
See Foster v. Illinois, 332 U. S. 134,
332 U. S. 137;
Adamson v. California, 332 U. S. 46,
concurring opinion at pp. 332 U. S. 61-67;
Betts v. Brady, 316 U. S. 455,
316 U. S. 465;
Brown v. Mississippi, 297 U. S. 278,
297 U. S.
285-286; Powell v. Alabama, 287 U. S.
45, 287 U. S. 61-62,
287 U. S. 67,
287 U. S. 71-72;
Hebert v. Louisiana, 272 U. S. 312,
272 U. S. 316;
Twining v. New Jersey, 211 U. S. 78;
Holden v. Hardy, 169 U. S. 366,
169 U. S.
389-390; Hurtado v. California, 110 U.
S. 516, 110 U. S. 532,
110 U. S. 535,
110 U. S.
537.
It is natural for state procedures to differ from each other in
many ways. It is permissible for the states to establish ways of
safeguarding the respective interests of the prosecution and of the
accused in their courts. These may differ from comparable practices
developed in the courts of other states or of the United States.
Before examining the Illinois practice and the precise facts of the
cases before us, it is helpful to see what has been the practice in
the courts of the United States, and especially to see what such
practice was in 1938, at the time of the trial of the instant
cases. While such federal court practice does not establish a
constitutional minimum standard of due process which must be
observed in each state under the Fourteenth Amendment, yet such
practice does afford an example approved by the courts of the
United States. It thus contributes something toward establishing a
general
Page 333 U. S. 660
standard of due process currently and properly applicable to the
states under the Fourteenth Amendment.
PRACTICE IN FEDERAL COURTS
The practice in the federal courts as to the right of the
accused to have the assistance of counsel is derived from the Sixth
Amendment, which expressly requires that, in all criminal
prosecutions in the courts of the United States, the accused shall
have the assistance of counsel for his defense. [
Footnote 15] There is no proof possible
that the same practice would have developed under the due process
clause of the Fifth Amendment had there been no specific provision
on the subject in the Sixth Amendment. It is obvious also that
there is no specific provision in the Fourteenth Amendment
comparable to that in the Sixth Amendment. Furthermore, at the time
of the trial of this case in 1938, the rule of practice even in the
federal courts was not as clear as it is today. The federal
statutes were then, and they are now, in practically the same form
as when they were enacted in 1789 and 1790. They provided merely
for a right of representation in the federal courts by the
accused's own counsel, and required assignment of counsel by the
court only on accusations for treason or other capital crimes.
[
Footnote 16] In fact, until
the decision of this Court in May, 1938 (one month before the trial
of the instant cases in the Illinois state court), in
Page 333 U. S. 661
Johnson v. Zerbst, 304 U. S. 458,
there was little in the decisions of any courts to indicate that
the practice in the federal courts, except in capital cases,
required the appointment of counsel to assist the accused in his
defense, as contrasted with the recognized right of the accused to
be represented by counsel of his own if he so desired. That
pre-1938 practice, however, was in the face of the language of the
Sixth Amendment which has held, in
Johnson v. Zerbst,
supra, to require the appointment of counsel in any federal
criminal case where the accused had no counsel and did not waive
the assistance of counsel. [
Footnote 17]
Page 333 U. S. 662
"The Sixth Amendment withholds from federal courts, in all
criminal proceedings, the power and authority to deprive an accused
of his life or liberty unless he has or waives the assistance of
counsel."
Id. at
304 U. S. 463.
See Powell v. Alabama, 287 U. S. 45,
287 U. S. 68-69,
and
Patton v. United States, 281 U.
S. 276,
281 U. S. 308,
as quoted in the
Zerbst case.
See also Walker v.
Johnston, 312 U. S. 275.
The view of this Court as to the practice best adapted to the
needs of the federal courts and most responsive to the requirements
of the Federal Constitution and statutes, as well as to the
decisions of this Court, is now stated in Rule 44 of the Federal
Rules of Criminal Procedure, which became effective March 21, 1946.
[
Footnote 18] In view,
however, of the applicability to the state courts of the
Fourteenth, rather than the Sixth, Amendment, this new rule cannot
be
Page 333 U. S. 663
regarded as defining, even by analogy, the minimum requirement
of due process for the states under the Fourteenth Amendment. The
new rule is evidence only of what this Court considers suitable in
the federal courts, and the states, in their discretion, may or may
not follow it. The states are free to determine their own practice
as to the assistance of counsel, subject to the general limitation
that such practice shall not deprive the accused of life, liberty,
or property without due process of law. Accordingly, the lack of
conformity of Illinois practice in 1938 to the standards
illustrated by the present Federal Rules of Criminal Procedure is
by no means determinative of the issue before us.
PRACTICE IN STATE COURTS
As throwing light on the general practice in the several states,
the National Commission on Law Observance and Enforcement, under
the chairmanship of George W. Wickersham, in its Report on
Prosecution in 1931, said:
"In America, counsel was allowed from an early date, and State
and Federal Constitutions guarantee to accused in all prosecutions
'the assistance of counsel for his defense,' in this or some
equivalent language. It will be seen from this bit of history that,
as indeed the courts have held, the right guaranteed is one of
employing counsel, not one of having counsel provided by the
Government. But, in the spirit of the guaranty, most of the States
have by legislation authorized, or even required, the courts to
assign counsel for the defense of indigent and unrepresented
prisoners. As to capital cases, all the States so provide.
Thirty-four States so provide for felonies, and 28 for
misdemeanors."
Vol. I, p. 30.
The foregoing suggests the existence of a gradual voluntary
trend among the states toward the authorization by
Page 333 U. S. 664
them of the appointment of counsel to assist the accused in his
defense in all criminal prosecutions, with special consideration to
the seriousness of the charge faced and to the actual needs of the
accused under the circumstances of each case. Much of this trend
has taken place since 1868. It is neither universal nor uniform.
The above summary shows that 20 states, in 1931, had no statute
authorizing such appointments of counsel in misdemeanor cases, and
14 had none, even in felony cases, unless the charges were for
capital offenses. Furthermore, some of these authorizations, as in
Illinois, were subject to special limitations requiring an
affirmative showing to be made by the accused of his inability to
procure counsel for himself.
Another indication of the opinion of representative members of
the Bench, Bar, and law school faculties appears in the following
quotation from § 203 of the Code of Criminal Procedure, approved by
the American Law Institute in 1930:
"Before the defendant is arraigned on a charge of felony, if he
is without counsel, the court shall, unless the defendant objects,
assign him counsel to represent him in the cause. Counsel so
assigned shall serve without cost to be defendant, and shall have
free access to the defendant, in private, at all reasonable hours,
while acting as counsel for him. Assignment of counsel shall not
deprive the defendant of the right to engage other counsel at any
stage of the proceedings in substitution of counsel assigned him by
the court."
At p. 88.
The Commentary of the Institute accompanying this Section shows
that the assistance recommended for the accused in § 203 of the
proposed Code was then far in advance of the statutes in most of
the states. The Commentary
Page 333 U. S. 665
also illustrates the variations existing among the processes
adopted by the states in their search for a satisfactory process of
law in this regard. It demonstrates that, up to 1930, but limited
progress had been made by statute toward the standard now claimed
by the petitioner to have become constitutionally essential to a
valid judgment in the instant cases in 1938. [
Footnote 19] It illustrates the wide difference
naturally and constitutionally existing between what has been
prescribed by the several states and what has been recommended to
them by the Institute. We do not find in the Fourteenth Amendment
authority for this Court to do what is asked of us here -- namely,
to require all the states to enforce in substance either Rule 44 of
the new Federal Rules of Criminal Procedure or the proposed § 203
of the Code of Criminal Procedure recommended by the American Law
Institute, all under penalty of the invalidation of every past and
future nonconforming state judgment.
Page 333 U. S. 666
In reviewing the situation further, in 1942, this Court, in
Betts v. Brady, 316 U. S. 455,
indicated that it did not regard it to be a violation of the
Fourteenth Amendment for a Maryland trial court to refuse to
appoint counsel to represent an indigent defendant charged with
robbery under the circumstances of that case. [
Footnote 20] We there stated the general
principle as follows:
"The due process clause of the Fourteenth Amendment does not
incorporate, as such, the specific guarantees found in the Sixth
Amendment, although a denial by a state of rights or privileges
specifically embodied in that and others of the first eight
amendments may, in certain circumstances, or in connection with
other elements, operate, in a given case, to deprive a litigant of
due process of law in violation of the Fourteenth. . . . Asserted
denial [of counsel] is to be tested by an appraisal of the totality
of facts in a given case. That which may, in one setting,
constitute a denial of fundamental fairness shocking to the
universal sense of justice may, in other circumstances and in the
light of other considerations, fall short of such denial. In the
application of such a concept, there is always the danger of
falling into the habit of formulating the guarantee into a set
Page 333 U. S. 667
of hard and fast rules the application of which in a given case
may be to ignore the qualifying factors therein disclosed."
Id. at pp.
316 U. S.
461-462. [
Footnote
21]
Page 333 U. S. 668
If, in the face of these widely varying state procedures, this
Court were to select the rule contended for by the petitioner and
hold invalid all procedure not reaching that standard, it not only
would disregard the basic and historic power of the states to
prescribe their own local court procedures (subject only to a broad
constitutional prohibition in the Fourteenth Amendment against the
abuse of that power), but it would introduce extraordinary
confusion and uncertainty into local criminal procedure, where
clarity and certainty are the primary essentials of law and
order.
PRACTICE IN ILLINOIS COURTS
The precise question here is whether the sentences in the two
Illinois cases before us violated the Fourteenth Amendment. The
Supreme Court of Illinois has affirmed both sentences,
supra, 396 Ill. 588, 72 N.E.2d 813. It has thus
conclusively established their compliance with Illinois law. While
such a finding of compliance with local law is not necessarily
sufficient to satisfy the requirements of due process under the
Fourteenth Amendment, we shall be helped, in measuring the
compliance of these judgments with such due process, if we note
exactly the requirements of Illinois law with which the Supreme
Court of that State has found compliance.
The material Sections of the Illinois Constitution have been
quoted. Illinois Constitution of 1870, Art. II, §§ 2 and 9,
supra. They provided that no person should be deprived of
life, liberty or property, without due process
Page 333 U. S. 669
of law, and that, in all criminal prosecutions, the accused had
the right to appear and defend in person and by counsel. The
statutes of Illinois in effect in 1938 contained the following
requirements as to the allowance and assignment of counsel to a
person charged with crime, and differentiated between the procedure
required in a capital case and that required in other cases:
"Every person charged with crime shall be allowed counsel, and
when he shall state upon oath that he is unable to procure counsel,
the court shall assign him competent counsel, who shall conduct his
defense. In all cases, counsel shall have access to persons
confined, and shall have the right to see and consult such persons
in private."
"Whenever it shall appear to the court that a defendant or
defendants indicted in a capital case is or are indigent and unable
to pay counsel for his or her defense, it shall be the duty of the
court to appoint one or more competent counsel for said defendant
or defendants. . . ."
Ill.Rev.Stat. 1937, c. 38, § 730.
An Illinois statute also provided expressly for cases in which
the party accused had pleaded "guilty." The record in the instant
cases shows complete compliance with this provision, which, in
effect, placed upon the trial court primary responsibility for
seeing to it that the procedure met all legal requirements, whether
of state or federal origin.
"In cases where the party pleads 'guilty,' such plea shall not
be entered until the court shall have fully explained to the
accused the consequences of entering such plea, after which, if the
party persist in pleading 'guilty,' such plea shall be received and
recorded, and the court shall proceed to render judgment and
execution thereon, as if he had been found guilty by a jury. In all
cases where the court possesses
Page 333 U. S. 670
any discretion as to the extent of the punishment, it shall be
the duty of the court to examine witnesses as to the aggravation
and mitigation of the offense."
Ill.Rev.Stat. 1937, c. 38, § 732.
PRACTICE IN THE INSTANT CASES
It is not our province to prescribe which procedure we consider
preferable among many permissible procedures which lawfully could
be followed by an Illinois or any other state court in connection
with counsel for the defense of a party accused of a state crime.
It is our province to decide whether the practice of the Illinois
court in these cases, although admittedly in conformity with the
law of Illinois, was so clearly at variance with procedure
constituting "due process of law" under the Fourteenth Amendment
that these sentences must be completely invalidated. This brings us
to an analysis of the precise facts presented by the records. Each
crime was punishable by a mandatory sentence of from one to 20
years in the penitentiary. The charges were stated in simple terms,
not ordinarily capable of being misunderstood by a 57-year old man,
however, elementary or primitive his understanding. There is no
claim that this petitioner failed to understand the charges. Before
he pleaded guilty, the court "admonished and explained to the said
defendant the consequences and penalties . . . " which would result
from his plea of guilty if made. The records then recite, largely
in the language of the statute, that
"the said defendant still persisting in his desire to enter his
plea of guilty to the crime of taking indecent liberties with
children, in manner and form as charged in the first count of the
indictment herein, the court grants such leave."
We do not accept the argument that these records are to be
considered unreliable because they are almost exactly in the
language of the statute. The important point is not so much that a
certain phraseology is
Page 333 U. S. 671
used as it is that the court actually represented the State at
the trial, and that the court did what the statute required of it.
It cannot be argued, without factual support, that the court failed
to do its full duty with an intelligent, competent, and
understanding appreciation of all of its state and federal
obligations. In the light of all the circumstances which must have
been obvious to the judge presiding in the courtroom, but are
incapable of reproduction here, the court granted leave to the
petitioner to enter his plea of guilty in each case. Before
sentence was passed, the record shows that the State's attorney and
the petitioner, in his own proper person, came before the court,
and the petitioner, "not saying anything further why the judgment
of the Court should not now be pronounced . . . ," the court
pronounced, in each case, the mandatory sentence for the crime to
which the petitioner had pleaded guilty. On the facts thus before
us in these records, which must be our sole guides in these cases,
there is no good reason to doubt either the due process or the
propriety of the procedure followed by the trial court. There is
nothing in the records on which to base a claim that the
petitioner's conduct did not fit the charges made against him.
There is nothing in them on which to base a claim of abnormality,
intoxication, or insanity on the part of the petitioner, or on
which to base a claim that there was any indignation, prejudice, or
emotional influence affecting the conduct or thought of anyone
connected with these trials. The presence of the judge, the State's
attorney, and the petitioner, together with a natural wish on the
part of the petitioner not to expand upon the shame of these
crimes, provide no ground for a conclusion that there has been any
failure, much less any constitutional failure, of fair judicial
process. Doubts should be resolved in favor of the integrity,
competence, and proper performance of their official duties by the
judge and the State's attorney.
Page 333 U. S. 672
They were state officials lawfully chosen to discharge serious
public responsibilities under their oaths of office. Especially in
a self-governing state and nation, governmental stability depends
upon the giving of full faith and credit in form, substance, and
spirit to public acts, records, and judicial proceedings not only
among the states, but among individuals and between their State and
Federal Governments.
Although the records disclose no affirmative basis for
invalidating the sentences, it is suggested that an error of
omission appears in the failure of the records to show either the
presence of counsel for the accused, or an inquiry by the court as
to counsel for the accused, or the appointment of counsel by the
court to assist the accused. Here also, if any presumption is to be
indulged, it should be one of regularity, rather than that of
irregularity. Eight years after the trial, in the complete absence
of any showing to the contrary, such a presumption of regularity
indicates that the court constitutionally discharged, rather than
unconstitutionally disregarded, its state and federal duties to the
petitioner, including those relating to his right, if any, to the
assistance of counsel.
People v. Fuhs, 390 Ill. 67, 60
N.E.2d 205. It is not necessary, however, for us to depend upon
such a presumption.
In the light of the affirmance of the instant judgments by the
Supreme Court of Illinois, and in the absence of evidence to the
contrary, it is clear that the trial court at least did not violate
any express requirements of any state statutes calling for
affirmative action by the court.
People v. Russell, 394
Ill. 192, 67 N.E.2d 895;
People v. Stack, 391 Ill. 15, 62
N.E.2d 807;
People v. Fuhs, supra; People v. Braner, 389
Ill. 190, 58 N.E.2d 869;
People v. Corrie, 387 Ill. 587,
56 N.E.2d 767;
People v. Corbett, 387 Ill. 41, 55 N.E.2d
74;
People v. Childers, 386 Ill. 312, 53 N.E.2d 878. In
view of the statutory requirements previously quoted (Ill.Rev.Stat.
1937, c. 38,
Page 333 U. S. 673
§ 730), the silence of the records affords adequate ground for
the minimum conclusions that the petitioner did not request
counsel, and did not, under oath, state that he, the petitioner,
was "unable to procure counsel." In fact, the petitioner does not
now claim that he did either of those things. The issue is
therefore whether, in the absence of any request by the petitioner
for counsel, and in the absence of any statement under oath by the
petitioner that he was unable to procure counsel, the court
violated due process of law under the Fourteenth Amendment by the
procedure which it took and which accorded with the procedure
approved by Illinois for noncapital cases such as these. This
procedure called upon the court to use its own judgment in the
light of the nature of the offenses, the age, appearance, conduct,
and statements of the petitioner in court. These circumstances
included the petitioner's plea of guilty, persisted in after the
court's admonishment of him and explanation to him of the
consequences and penalties involved in his plea. The court
thereupon granted leave to the petitioner to enter a plea of
guilty, and such a plea was entered by the petitioner in each
case.
In this view of the two cases before us, it is not necessary to
consider whether the petitioner, by his plea of guilty or
otherwise, affirmatively waived any right to the assistance of
counsel in his defense, for, under these circumstances, no
constitutional right to such assistance had arisen in his favor.
Under the procedure followed by the trial court, there was no
affirmative duty upon it, either of state or federal origin, to do
more than it did. In the present cases, the state statute allowed
the petitioner to be represented by counsel if the petitioner
desired to be so represented. The state statute and practice,
however, did not require that the accused must be so represented,
or that the trial court must initiate inquiry into the petitioner's
desires. The statute did require that the court
Page 333 U. S. 674
must assign counsel to conduct the defense for the accused if
the accused stated under oath that he was unable to procure
counsel. There is nothing in these records, however, either under
oath or otherwise, to show that the petitioner, at the time of
trial, either desired counsel or was unable to procure counsel.
The final question is therefore whether, even in the absence of
any state requirement to that effect, the provision requiring due
process of law under the Fourteenth Amendment, in and of itself,
required the court in these cases to initiate an inquiry into the
desire of the accused to be represented by counsel, to inquire into
the ability of the accused to procure counsel, or, in the event of
the inability of the accused to procure counsel, to assign
competent counsel to the accused to conduct his defense. We
recognize that, if these charges had been capital charges, the
court would have been required, both by the state statute and the
decisions of this Court interpreting the Fourteenth Amendment, to
take some such steps.
These, however, were not capital charges. They were charges of
the commission of two elementary offenses, carrying mandatory
sentences of from one to 20 years each. We have considered the
special circumstances as shown by these records. We do not find in
them adequate ground for concluding that the state court, by
failing to take the affirmative procedure suggested, violated due
process of law under the Fourteenth Amendment. In reaching this
conclusion, it is not necessary for us to rely upon the statutory
procedure of Illinois. It is appropriate, however, for us to
consider the Illinois statutes and practice, as well as the
statutes and practices of other states, as indicative that, in the
judgment of the people of many of the states, it is not necessary
to require further assurance of assistance of counsel to conduct
the defense of a person accused of crimes of this character and
under these circumstances.
Page 333 U. S. 675
It is established that it is permissible and well within "due
process of law" for a person, accused of such crimes, to waive his
rights, if any, to the assistance of counsel for his defense,
whether or not the accused also shall plead guilty. [
Footnote 22] If such waiver is to be
effective, it must be intelligently, competently, understandingly,
and voluntarily made. In the instant cases, the only evidence
before us of any affirmative waiver of a right to the assistance of
counsel, if any such right existed, appears in the petitioner's
pleas of guilty. There was, however, no need is these cases for a
waiver by the petitioner of additional action by the trial court,
because the petitioner had no state or federal right to such
action. Consequently, it is not necessary to inquire into the
effectiveness of the petitioner's pleas as amounting to waivers of
counsel, as well as admissions of guilt.
It may be that the state laws of some other states would have
required affirmative inquiries to have been made by the court. It
may be that, some day, all of the states will have adopted
practices corresponding to the new rule in the federal courts
[
Footnote 23] or to the
recommendations of the American Law Institute,
supra.
However, as the matter now stands, the states have substantial
discretion to determine, in the light of their respective histories
and needs, many practices in their criminal procedure, including
this practice.
The issue in the instant cases is only whether or not the action
taken by the state court violated the Fourteenth Amendment. In
answering that question in the
Page 333 U. S. 676
negative, this opinion follows the principles which have been
announced by this Court in passing upon somewhat similar issues
where the accused has been tried in a state court for a noncapital
offense and where complaint has been made that there was violation
of due process of law under the Fourteenth Amendment. Recently,
this Court said that, although failure to assign counsel to assist
an accused in his defense in a federal court for a noncapital crime
might violate the express provisions of the Sixth Amendment, that
did not mean that a like failure to do so in an Illinois
prosecution for the noncapital felony of burglary would violate due
process of law under the Fourteenth Amendment.
Foster v.
Illinois, 332 U. S. 134. A
comparable conclusion has been reached under the Fifth and
Fourteenth Amendments as to self-incrimination by a defendant in a
criminal case, particularly in relation to the right of counsel for
the state to comment on the defendant's failure to testify.
Adamson v. California, 332 U. S. 46.
Refusal by a Maryland court to appoint counsel requested by the
accused to assist him in his defense against a charge of commission
of the noncapital felony of robbery was held not to violate the
Fourteenth Amendment.
Betts v. Brady, 316 U.
S. 455. In that case, the commission or nature of the
offense charged was not the issue, because the defense was merely
that of an alibi.
On the other hand, this Court repeatedly has held that failure
to appoint counsel to assist a defendant or to give a fair
opportunity to the defendant's counsel to assist him in his defense
where charged with a capital crime is a violation of due process of
law under the Fourteenth Amendment.
Carter v. Illinois,
329 U. S. 173;
Hawk v. Olson, 326 U. S. 271;
Tomkins v. Missouri, 323 U. S. 485;
Williams v. Kaiser, 323 U. S. 471;
Powell v. Alabama, 287 U. S. 45;
Moore v. Dempsey, 261 U. S. 86.
See also De Meerleer v. Michigan, 329 U.
S. 663 (convicted
Page 333 U. S. 677
of first degree murder and sentenced to life imprisonment).
In a noncapital state felony case, this Court has recognized the
constitutional right of the accused to the assistance of counsel
for his defense when there are special circumstances showing that,
otherwise, the defendant would not enjoy that fair notice and
adequate hearing which constitute the foundation of due process of
law in the trial of any criminal charge.
Rice v. Olson,
324 U. S. 786. In
that case, the immediate issue was one of waiver, but the
underlying question involved a charge of burglary against an
ignorant Indian, coupled with a complex legal issue arising from
the claim that the crime was committed on an Indian reservation.
For discussions bearing on the absence of due process resulting
from the inability of the defendant, intelligently and competently,
either to plead guilty or to defend himself in certain noncapital
cases,
see Foster v. Illinois, 332 U.
S. 134,
332 U. S.
137-138;
Canizio v. New York, 327 U. S.
82,
327 U. S. 84-85
(robbery in the first degree);
House v. Mayo, 324 U. S.
42,
324 U. S. 45-46
(burglary);
Smith v. O'Grady, 312 U.
S. 329,
312 U. S.
332-334 (burglary);
Powell v. Alabama,
287 U. S. 45,
287 U. S. 70
(dictum as to deportation cases).
For the foregoing reasons, and under the principles previously
announced by this Court, the judgment of the Supreme Court of
Illinois is
Affirmed.
[
Footnote 1]
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any States deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
U.S.Const.Amend. XIV, § 1.
[
Footnote 2]
". . . any person of the age of seventeen years and upwards who
shall take, or attempt to take, any immoral, improper or indecent
liberties with any child of either sex, under the age of fifteen
years, with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires, either of such person or of
such child, or of both such person and such child, . . . shall be
imprisoned in the penitentiary not less than one year nor more than
twenty years. . . ."
[
Footnote 3]
An indictment stating this offense substantially in the language
of the statute, though not setting out facts constituting the
elements of the crime, was sufficient.
People v. Rogers,
324 Ill. 224, 229, 154 N.E. 909, 911;
People v. Butler,
268 Ill. 635, 641, 109 N.E. 677, 679;
People v. Scattura,
238 Ill. 313, 314, 315, 87 N.E. 332, 333.
A copy of each indictment, with both counts on the same sheet,
was furnished to the petitioner, and the devastating frankness of
the second count in describing the acts complained of rendered
impossible any misunderstanding of the charge. The petitioner does
not contend that he failed to understand it. By leave of court, the
State entered "
Nolle Prosequi" as to each second
count.
[
Footnote 4]
One long-recognized difference between the trial procedure in
the federal courts and that in many state courts is the greater
freedom that is allowed to a federal court, as compared with that
allowed to a state court, to comment upon the evidence when
submitting a case to a jury.
See Quercia v. United States,
289 U. S. 466,
289 U. S. 469;
Patton v. United States, 281 U. S. 276,
281 U. S. 288;
Simmons v. United States, 142 U.
S. 148,
142 U. S. 155. The
federal practice is based upon the rules of common law comparable
to those mentioned in the Seventh Amendment. The federal and state
practices have their respective proponents and opponents, but both
practices unquestionably represent "due process of law."
[
Footnote 5]
See Federalist Papers, Number XLIV, Restrictions on the
Authority of the Several States; Number XLV, The Alleged Danger
from the Powers of the Union to the State Governments Considered;
Number XLVI, The Influence of the State and Federal Governments
Compared.
[
Footnote 6]
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in
any Criminal Case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just
compensation."
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defence."
"In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any Court of the United States than according to the
rules of the common law."
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
U.S.Const. Amend. IV, V, VI, VII and VIII.
[
Footnote 7]
"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the
people."
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
U.S.Const. Amend. IX and X.
[
Footnote 8]
U.S.Const. Amend. X,
note 7
supra.
[
Footnote 9]
". . . Due process of law in the latter [
i.e., the
Fifth Amendment] refers to that law of the land which derives its
authority from the legislative powers conferred upon congress by
the constitution of the United States, exercised within the limits
therein prescribed, and interpreted according to the principles of
the common law. In the fourteenth amendment, by parity of reason,
it refers to that law of the land in each state which derives its
authority from the inherent and reserved powers of the state,
exerted within the limits of those fundamental principles of
liberty and justice which lie at the base of all our civil and
political institutions, and the greatest security for which resides
in the right of the people to make their own laws, and alter them
at their pleasure."
Hurtado v. California, 110 U.
S. 516,
110 U. S.
535.
[
Footnote 10]
Article VIII of the Illinois Constitution of 1818 contained 23
sections dealing with the types of matters that are found in the
Federal Bill of Rights. On the subject of "due process," it
included the following:
"§ 8. That no freeman shall be imprisoned or disseized of his
freehold, liberties, or privileges, or outlawed or exiled, or in
any manner deprived of his life, liberty, or property, but by the
judgment of his peers or the law of the land. . . ."
[
Footnote 11]
Article XIII of the Illinois Constitution of 1848 contained the
following:
"That the general, great and essential principles of liberty and
free government may be recognized and unalterably established, we
declare:"
"
* * * *"
"§ 8. That no freeman shall be imprisoned or disseized of his
freehold, liberties or privileges, or outlawed or exiled, or in any
manner deprived of his life, liberty, or property but by the
judgment of his peers, or the law of the land."
"§ 9. That, in all criminal prosecutions, the accused hath a
right to be heard by himself and counsel; to demand the nature and
cause of the accusation against him; to meet the witnesses face to
face; to have compulsory process to compel the attendance of
witnesses in his favor, and in prosecutions by indictment or
information, to speedy public trial by an impartial jury of the
county or district wherein the offense shall have been committed,
which county or district shall have been previously ascertained by
law, and that he shall not be compelled to give evidence against
himself."
Reprinted in Ill.Rev.Stat. (1937).
[
Footnote 12]
For historical treatments of the Sixth and Fourteenth Amendments
in decisions of this Court in relation to the general subject
matter of the instant cases
see especially Adamson v.
California, 332 U. S. 46,
concurring opinion pp.
332 U. S. 61-68,
dissenting opinion pp.
332 U. S.
68-123;
Betts v. Brady, 316 U.
S. 455,
316 U. S.
464-472, dissenting opinion pp.
316 U. S.
477-480;
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S.
462-463;
Palko v. Connecticut, 302 U.
S. 319,
302 U. S.
322-328;
Powell v. Alabama, 287 U. S.
45,
287 U. S. 59-69;
Hurtado v. California, 110 U. S. 516,
110 U. S.
520-538, dissenting opinion pp.
110 U. S.
538-558;
Davidson v. New Orleans, 96 U. S.
97,
96 U. S.
100-104.
[
Footnote 13]
A classic statement of way it is due process to do many things
in the state courts, particularly of a procedural nature, that may
not be done in federal courts because of the specific procedural
requirements of the Federal Bill of Rights was made by Mr. Justice
Cardozo in the light of his long experience in state courts.
"We have said that, in appellant's view, the Fourteenth
Amendment is to be taken as embodying the prohibitions of the
Fifth. His thesis is even broader. Whatever would be a violation of
the original bill of rights (Amendments I to VIII) if done by the
federal government is now equally unlawful by force of the
Fourteenth Amendment if done by a state. There is no such general
rule."
"The Fifth Amendment provides, among other things, that no
person shall be held to answer for a capital or otherwise infamous
crime unless on presentment or indictment of a grand jury. This
court has held that, in prosecutions by a state, presentment or
indictment by a grand jury may give way to informations at the
instance of a public officer.
Hurtado v. California,
110 U. S.
516;
Gaines v. Washington, 277 U. S.
81,
277 U. S. 86. The Fifth
Amendment provides also that no person shall be compelled in any
criminal case to be a witness against himself. This court has said
that, in prosecutions by a state, the exemption will fail if the
state elects to end it.
Twining v. New Jersey,
211 U. S.
78,
211 U. S. 106,
211 U. S.
111-112.
Cf. Snyder v. Massachusetts, supra, p.
291 U. S. 105;
Brown v.
Mississippi, 297 U. S. 278,
297 U. S.
285. The Sixth Amendment calls for a jury trial in
criminal cases, and the Seventh for a jury trial in civil cases at
common law where the value in controversy shall exceed twenty
dollars. This court has ruled that, consistently with those
amendments, trial by jury may be modified by a state, or abolished
altogether.
Walker v. Sauvinet, 92 U. S. 90;
Maxwell v. Dow, 176 U. S. 581;
New York
Central R. Co. v. White, 243 U. S. 188,
243 U. S.
208;
Wagner Electric Mfg. Co. v. Lyndon,
262 U. S.
226,
262 U. S. 232. As to the
Fourth Amendment, one should refer to
Weeks v. United
States, 232 U. S. 383,
232 U. S.
398, and as to other provisions of the Sixth, to
West v. Louisiana, 194 U. S. 258."
Palko v. Connecticut, 302 U. S. 319,
302 U. S.
323-324,.
[
Footnote 14]
Art. II, § 2, of the Illinois Constitution of 1870,
supra.
[
Footnote 15]
See note 6
supra.
"By virtue of that provision [in the Sixth Amendment], counsel
must be furnished to an indigent defendant prosecuted in a federal
court in every case, whatever the circumstances."
Foster v. Illinois, 332 U. S. 134,
332 U. S.
136-137.
See also Betts v. Brady, 316 U.
S. 455,
316 U. S. 461,
316 U. S.
464-465;
Glasser v. United States, 315 U. S.
60,
315 U. S. 70;
Johnson v. Zerbst, 304 U. S. 458;
Palko v. Connecticut, 302 U. S. 319,
302 U. S.
327.
[
Footnote 16]
"In all the courts of the United States the parties may plead
and manage their own causes personally, or by the assistance of
such counsel or attorneys at law as, by the rules of the said
courts, respectively, are permitted to manage and conduct causes
therein."
Jud.Code, § 272, 36 Stat. 1164, 28 U.S.C. § 394.
This is almost verbatim as it was enacted as § 35 in the First
Judiciary Act, September 24, 1789, 1 Stat. 92.
"Every person who is indicted of treason or other capital crime
shall be allowed to make his full defense by counsel learned in the
law, and the court before which he is tried, or some judge thereof,
shall immediately, upon his request, assign to him such counsel,
not exceeding two, as he may desire, and they shall have free
access to him at all seasonable hours. . . ."
R.S. § 1034, 18 U.S.C. § 563.
This conforms closely to § 29 in the first Federal Crimes Act,
approved April 30, 1790, 1 Stat. 118.
[
Footnote 17]
"It is probably safe to say that, from its adoption in 1791
until 1938, the right conferred on the accused by the Sixth
Amendment 'to have the assistance of counsel for his defense' was
generally understood as meaning that, in the Federal courts, the
defendant in a criminal case was entitled to be represented by
counsel retained by him. It was not assumed that this
constitutional privilege comprised the right of a prisoner to have
counsel assigned to him by the court if, for financial or other
reasons, he was unable to retain counsel. The Sixth Amendment was
not regarded as imposing on the trial judge in a Federal court the
duty to appoint counsel for an indigent defendant."
"
* * * *"
"The marked departure effected by the decision in
Johnson v.
Zerbst created a practical difficulty in respect to cases
previously tried. No obstacle existed in connection with the
application of this ruling to subsequent proceedings."
Holtzoff, The Right of Counsel Under the Sixth Amendment, 20
N.Y.U.L.Q.Rev. 1, 7-8, 10 (1944).
At the time of making the above statement, Judge Holtzoff was
the Secretary for the Advisory Committee on Federal Rules of
Criminal Procedure.
[
Footnote 18]
"RULE 44. ASSIGNMENT OF COUNSEL. If the defendant appears in
court without counsel, the court shall advise him of his right to
counsel and assign counsel to represent him at every stage of the
proceeding unless he elects to proceed without counsel or is able
to obtain counsel."
Federal Rules of Criminal Procedure, effective March 21, 1946,
327 U.S. 866, 867, 18 U.S.C. § 1946 ed., following § 687.
"This rule is a restatement of existing law in regard to the
defendant's constitutional right of counsel as defined in recent
judicial decisions. . . . The present extent of the right of
counsel has been defined recently in
Johnson v. Zerbst,
304 U. S.
458;
Walker v. Johnston, 312 U. S.
275, and
Glasser v. United States, 315 U. S.
60. The rule is a restatement of the principles
enunciated in these decisions."
Notes to the Rules of Criminal Procedure for the District Courts
of the United States, as prepared under the direction of the
Advisory Committee on Rules of Criminal Procedure, March, 1945, p.
38.
[
Footnote 19]
The tabulations show that, as of 1930, 13 states
"provide that, if the defendant appear for arraignment without
counsel, he shall be informed by the court that it is his right to
have counsel before being arraigned, and he shall be asked if he
desire the aid of counsel."
Six states "provide that the accused has a right to counsel. . .
." Eighteen states, including Illinois, provide under varying
conditions "that the court shall assign counsel if the accused
desire it, and be unable to employ counsel. . . ." Fifteen states,
including Illinois, provide under varying conditions "that the
court shall assign counsel if the accused be unable to employ
counsel. . . ." Both Illinois and Louisiana required a showing of
inability to be made by the accused under oath. Five states
"provide that the court shall assign counsel if accused desire it.
. . ." Three states provide that the court may appoint one or more
attorneys to represent the accused, and 14 "provide that the
appointment of counsel by the court for the defense of the accused
shall not exceed two. . . ." Thirteen states "provide that counsel
for the defense shall have free access to the prisoner at all
reasonable hours. . . ." Code of Criminal Procedure, Commentary to
§ 203 (1930) 630-634.
[
Footnote 20]
This Court summarized those circumstances as follows:
"In this case, there was no question of the commission of a
robbery. The State's case consisted of evidence identifying the
petitioner as the perpetrator. The defense was an alibi. Petitioner
called and examined witnesses to prove that he was at another place
at the time of the commission of the offense. The simple issue was
the veracity of the testimony for the State and that for the
defendant. As Judge Bond says, the accused was not helpless, but
was a man forty-three years old, of ordinary intelligence and
ability to take care of his own interests on the trial of that
narrow issue. He had once before been in a criminal court, pleaded
guilty to larceny, and served a sentence, and was not wholly
unfamiliar with criminal procedure."
Id. at p.
316 U. S.
472.
[
Footnote 21]
The Court also reviewed the material constitutional and
statutory provisions of the thirteen original states.
Id.
at p.
316 U. S. 467.
It then summarized as follows other constitutional and statutory
provisions currently in force:
"The constitutions of all the states, presently in force, save
that of Virginia, contain provisions with respect to the assistance
of counsel in criminal trials. Those of nine states may be said to
embody a guarantee textually the same as that of the Sixth
Amendment, or of like import. In the fundamental law of most
states, however, the language used indicates only that a defendant
is not to be denied the privilege of representation by counsel of
his choice."
"
* * * *"
"In eighteen states, the statutes now require the court to
appoint in all cases where defendants are unable to procure
counsel. . . . And it seems to have been assumed by many
legislatures that the matter was one for regulation from time to
time as deemed necessary, since laws requiring appointment in all
cases have been modified to require it only in the case of certain
offenses."
Id. at pp.
316 U. S.
467-468,
316 U. S.
470-471.
Particularly from the failure of the states to treat the
requirement of inquiry by the court as to counsel or the
requirement of appointment of counsel either uniformly or as a
matter for incorporation in the state constitutions, the Court
concluded:
"we are unable to say that the concept of due process
incorporated in the Fourteenth Amendment obligates the states,
whatever may be their own views, to furnish counsel in every such
case. Every court has power, if it deems proper, to appoint counsel
where that course seems to be required in the interest of
fairness."
Id. at pp.
316 U. S.
471-472.
The dissenting opinion also marshals the states and collects
them under the following headings: 35 states, including Illinois,
by constitutional or statutory provision or by judicial decision or
established practice judicially approved, require "that indigent
defendants in noncapital as well as capital criminal cases be
provided with counsel
on request. . . . " (Italics
supplied); of the remaining 13, nine "are without constitutional
provision, statutes, or judicial decisions clearly establishing
this requirement . . . ;" there are two states "in which dicta of
judicial opinions are in harmony with the decision by the court
below in this case . . . " (here affirmed), and there are two
states "in which the requirement of counsel for indigent defendants
in noncapital cases has been affirmatively rejected. . . ."
Id. at pp.
316 U. S.
477-480. For the instant cases, the important point is
that this tabulation shows that only 35 states required the
appointment of counsel for indigent defendants in noncapital cases,
even upon the accused's request for such appointment. No such
request was present here.
[
Footnote 22]
Carter v. Illinois, 329 U. S. 173,
329 U. S.
174-175;
Rice v. Olson, 324 U.
S. 786,
324 U. S.
788-789;
Adams v. United States ex rel. McCann,
317 U. S. 269,
317 U. S.
267-279;
Walker v. Johnston, 312 U.
S. 275,
312 U. S. 286;
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 464,
304 U. S.
467-469.
See The Right to Benefit of Counsel
Under the Federal Constitution, 42 Col.L.Rev. 271, 277-280
(1942).
[
Footnote 23]
See note 17
supra.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK, MR. JUSTICE
MURPHY, and MR. JUSTICE RUTLEDGE concur, dissenting.
In considering cases like this and the ill starred decision in
Betts v. Brady, [
Footnote
2/1]
316 U. S. 455, we
should ask ourselves
Page 333 U. S. 678
this question: of what value is the constitutional guaranty of a
fair trial if an accused does not have counsel to advise and defend
him?
The Framers deemed the right of counsel indispensable, for they
wrote into the Sixth Amendment that, in all criminal prosecutions,
the accused "shall enjoy the right . . . to have the Assistance of
Counsel for his defence." Hence, if this case had been tried in the
federal court, appointment of counsel would have been mandatory,
even though Bute did not request it.
See Johnson v.
Zerbst, 304 U. S. 458,
304 U. S. 463.
I do not think the constitutional standards of fairness depend on
what court an accused is in. I think that the Bill of Rights is
applicable to all courts at all times. MR. JUSTICE BLACK
demonstrated in his dissent in
Adamson v. California,
332 U. S. 46,
332 U. S. 68,
332 U. S. 71,
that a chief purpose of the Fourteenth Amendment was to protect the
safeguards of the Bill of Rights against invasion by the states. If
due process, as defined in the Bill of Rights, requires appointment
of counsel to represent defendants in federal prosecutions, due
process demands that the same be done in state prosecutions. The
basic requirements for fair trials are those which the Framers
deemed so important to procedural due process that they wrote them
into the Bill of Rights, and thus made it impossible
Page 333 U. S. 679
for either legislatures or courts to tinker with them. I fail to
see why it is due process to deny an accused the benefit of counsel
in a state court when, by constitutional standards, that benefit
could not be withheld from him in a federal court.
But, if we take the view more hostile to the rights of the
individual and assume that procedural due process guaranteed by the
Fourteenth Amendment provides lesser safeguards than those of the
Bill of Rights, the result should be the same . Then the question
is whether the appointment of counsel for Bute was required "by
natural, inherent, and fundamental principles of fairness."
Betts v. Brady, supra, p.
316 U. S.
464.
Illinois allows counsel to everyone charged with crime. To
obtain counsel, however, the accused has to ask for one, and also
to state upon oath that he is unable to procure counsel. [
Footnote 2/2]
People v. Van Horn,
396 Ill. 496, 498, 72 N.E.2d 187. But, as held by the Illinois
Supreme Court in the present case, the court need not advise him of
his right to counsel. [
Footnote
2/3] The Illinois rule apparently proceeds from the premise
that the average person knows of his right to counsel and resorts
to an attorney in case he gets caught in the toils of the law. That
view, if logically applied, would not require appointment of
counsel in any case -- capital or otherwise. For a man charged
Page 333 U. S. 680
with murder usually knows whether or not it was his blow or shot
that killed the deceased, and therefore whether he is unjustly
accused. And he certainly knows he is in serious trouble when he is
faced with such a charge. The logic of the Illinois view would lead
to the conclusion that the average man in those circumstances would
know enough to demand a lawyer to defend him, and that the court
need not offer one to him.
Fortunately for the liberal tradition, the law has followed a
different course. At least where the offense charged is a capital
one, due process requires appointment of counsel in state, as well
as in federal, prosecutions.
Powell v. Alabama,
287 U. S. 45;
Williams v. Kaiser, 323 U. S. 471;
De Meerleer v. Michigan, 329 U. S. 663. The
reason is that the guilty as well as the innocent are entitled to a
fair trial, that a layman without the experience and skill of
counsel to guide him may get lost in the intricacies of the law and
lose advantages which it extends to every accused, that, without
expert appraisal of the circumstances surrounding his arrest,
detention, arraignment, and conviction the penalties he suffers may
be aggravated by his own ignorance or by overreaching of the
prosecution or police. [
Footnote
2/4] Hence, the need for counsel
Page 333 U. S. 681
exists in capital cases whether the accused contests the charge
against him or pleads guilty.
Foster v. Illinois,
332 U. S. 134,
332 U. S.
137.
Those considerations are equally germane though liberty, rather
than life, hangs in the balance. Certainly due process shows no
less solicitude for liberty than for life. A man facing a prison
term may, indeed, have as much at stake as life itself.
Bute was charged with a most repulsive crime. It may seem easy
to say that it is a simple and uncomplicated one, and therefore
that he should know whether he committed it and whether he stood in
need of counsel. But it has long been recognized that the charge of
taking indecent liberties with a child is, like rape, "an
accusation easily to be made and hard to be proved, and harder to
be defended by the party accused, the never so innocent." 1 Hale's
Pleas of the Crown 634. As stated by the Illinois Supreme Court in
People v. Freeman, 244 Ill. 590, 594, 91 N.E. 708, 709,
"Public indignation is even more apt to be aroused in prosecutions
for crimes of this kind against children than when the charge is
brought by an adult." Certainly the appraisal of such
imponderables, the weight of the prosecution's case, the character
of the defense which is available [
Footnote 2/5] are all questions which only a skilled
lawyer can consider intelligently. A layman might rush to
confession where counsel would see advantages in a trial before
judge or jury. Counsel might see weakness in the prosecution's case
which could be
Page 333 U. S. 682
utilized either in standing trial or in pleading guilty to a
lesser offense. These are the circumstances of the present case
which Bute uses to appeal to our conscience. They, without more,
convince me that we could be sure Bute had a fair trial only if
counsel had stood at his side and guided him across the treacherous
ground he had to traverse.
Betts v. Brady, supra, holds that we must determine
case by case, rather than by the Sixth Amendment, whether an
accused is entitled to counsel. A man who suffers up to 20 years in
prison as a penalty is undergoing one of the most serious of all
punishments. It might not be nonsense to draw the
Betts v.
Brady line somewhere between that case and the case of one
charged with violation of a parking ordinance, and to say the
accused is entitled to counsel in the former, but not in the
latter. But to draw the line between this case and cases where the
maximum penalty is death is to make a distinction which makes no
sense in terms of the absence or presence of need for counsel. Yet
it is the need for counsel that establishes the real standard for
determining whether the lack of counsel rendered the trial unfair.
And the need for counsel, even by
Betts v. Brady
standards, is not determined by the complexities of the individual
case or the ability of the particular person who stands as an
accused before the court. That need is measured by the nature of
the charge and the ability of the average man to face it alone,
unaided by an expert in the law. As
Powell v. Alabama,
supra, indicates, the need for counsel in capital cases is
great even though the defendant is an intelligent and educated
layman. The need is equally as great when one stands accused of the
serious charge confronting Bute.
[
Footnote 2/1]
Betts v. Brady was decided June 1, 1942. Benjamin V.
Cohen and Erwin N. Griswold, writing in the New York Times, August
2, 1942, stated:
"Most Americans -- lawyers and laymen alike -- before the
decision in
Betts v. Brady would have thought that the
right of the accused to counsel in a serious criminal case was
unquestionably a part of our own Bill of Rights. Certainly the
majority of the Supreme Court which rendered the decision in
Betts v. Brady would not wish their decision to be used to
discredit the significance of that right and the importance of its
observance."
"Yet, at a critical period in world history,
Betts v.
Brady dangerously tilts the scales against the safeguarding of
one of the most precious rights of man. For, in a free world, no
man should be condemned to penal servitude for years without having
the right to counsel to defend him. The right to counsel, for the
poor as well as the rich, is an indispensable safeguard of freedom
and justice under law."
[
Footnote 2/2]
"Every person charged with crime shall be allowed counsel, and
when he shall state upon oath that he is unable to procure counsel,
the court shall assign him competent counsel, who shall conduct his
defense. In all cases, counsel shall have access to persons
confined, and shall have the right to see and consult such persons
in private."
"Whenever it shall appear to the court that a defendant or
defendants indicted in a capital case is or are indigent and unable
to pay counsel for his or her defense, it shall be the duty of the
court to appoint one or more competent counsel for said defendant
or defendants. . . ."
Ill.Rev.Stat. 1937, c. 38, § 730.
[
Footnote 2/3]
For a summary of the Illinois cases,
see the dissenting
opinion of Mr. Justice Rutledge in
Foster v. Illinois,
332 U. S. 134,
332 U. S.
143-144.
[
Footnote 2/4]
The classic statement is that of Mr. Justice Sutherland in
Powell v. Alabama, supra, pp.
287 U. S.
68-69:
"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, or those of feeble intellect."
[
Footnote 2/5]
The specific intent which is an ingredient of this offense may
be disproved by a showing of intoxication (
People v.
Klemann, 383 Ill. 236, 48 N.E.2d 957) or insanity.
Ill.Rev.Stat. 1937, c. 38, §§ 590, 592.