ARK.]	 1067 

MURRAY WELLS t. STATE OF ARKANSAS 

5206	 411 S. W. 2d 529


Opinion delivered February 20, 1967 

1. CRIMINAL LAW—TIMELY APPOINTMENT OF COUNSEL—CONSTITUTIONAL PROVISIONS.—Whether appointment of counsel is timely 

depends on whether the trial is fundamentally unfair because 

of a delay in assigning counsel. 

2. CRIMINAL LAW—TIMELY APPOINTMENT OF COUNSEL—VIOLATION 

OF CONSTITUTIONAL RIGHTs.—The fact that counsel is not appointed for an accused immediately upon filing of an information does not constitute delay in assigning counsel which would 

make the trial fundamentally unfair. 

3. CRIMINAL LAW—VOLUNTARINESS OF CONFESSION—WEIGHT & SUFFICIENCY OF EVIDENCE.—Contention that involuntariness of appellant's initial confession made at the penitentiary under threat 

of death continued and included confession of guilt in open 

court at subsequent hearing thereby making latter admission 

illegal held without merit where trial judge who presided at 

both hearings did not accept as true appellant's uncontradicted 

testimony. 

4 CRIMINAL LAW—CONFESSIONS, ADMISSIONS & DECLARATIONS—PROVINCE oF couRT.—The giving of testimony by an accused, although 

uncontradicted, does not mean it must be accepted as true by 

the trial court. 

5 CRIMINAL LAW—ACCUSED'S RIGHT TO couNsm—wAivER.—Contention that appellant's plea of guilty made in open court in absence of counsel was void held without merit where appellant 

was advised of his constitutional rights, including right to counsel, which he waived and entered plea of guilty to second degree 

murder. 

Appeal from Lincoln Circuit Court, Henr! TV. 

Smith, Judge ; affirmed. 

Odell C. Carter, for appellant. 

Joe Purcell, Attorney General; Don Langston. 

Asst. Atty. General, for appellee. 

LYLE BROWN, Justice. Appellant is an inmate of the 

Arkansas penitentiary and by this proceeding questions 

the ruling of the Lincoln County Circuit Court wherein 

appellant's prayer under a habeas corpus proceeding 

was denied.
11_168	 WELLS V. STATE [241 

Wells received a five year sentence in the Cross 

County Circuit Court in 1956. A fellow inmate at the 

ienitentiary was killed in 1957 and appellant was 

charged in the Lincoln County Circuit Court with murder. He entered a plea of guilty to second degree murder on August 3, 1957, and received a sentence of 21 

years to run consecutively with the previous sentence, 

In October 1965, Wells filed a handwritten petition 

in the Lincolm Circuit Court, which was appropriately 

treated by the trial court as a petition for a writ of 

habeas corpus. He alleged he was being detained in violation of his constitutional rights, in that he was a minor 

at the time, that he was not afforded counsel, and that 

he was coerced by the late Capt. Lee Henslee into making a confession. Wells was brought before Hon. Henry 

W.' Smith, presiding judge of the Lincoln Circuit Court, 

and the same judge who was presiding in 1957 and sentenced Wells._Hearing was set for March 9, 1966, and Attorney Odell Carter was appointed to represent the petitioner. The trial court entered these findings on his 

docket : 

"3-9-66. Odell Carter appointed to represent the 

'defendant. The Court finds no merit in the petitioner's petition. On 8-3-57 the. petitioner was brought 

into court on -a first degree murder charge and all 

his constitutional rights were explained to him and 

he was offered an attorney and a jury trial. The 

petition is denied and he is remanded to Supt. of 

State Penitentiary." 

The proceedings of March 9 were not transcribed; 

however, counsel for appellant states in his brief that 

appellant testified to the matters contained in his petition for writ of habeas corpus : that the State responded 

by denying the allegations and presenting a penitentiary commitment valid on its face. 

Two points are relied upon for reversal, and they 

will be set forth as they are discussed.
ARK.] WELLS V. STATE 1069 

First: The appellant's constitutional rights were 

violated in that he was not properly represented by 

counsel at all stages of the legal proceedings. Appellant 

asserts that the right to counsel began upon the filing 

of the information on June 21, 1957. 

Appellant cites United States v. Richmond, 295 F. 

2d 83 (1961). This decision does not sustain appellant's 

first contention. It holds that whether the appointment 

of counsel is timely depends on whether the trial is fundamentally unfair because of delay in assigning counsel. Further, it is there held that the precise point at 

which the duty to assign counsel arises "is not set by 

any inflexible rule." In our case, appellant would have 

us set an infleyible rule of requiring appointme-nt of 

counsel immediately upon the filing of the information. 

We have also examined the other authority upon which 

appellant relies. Hawk v. Olson, 326 U. S. 271 (1945). It 

simply holds that the appointment of counsel must be 

timely made, substantially as is held in Richmond. 

Under the first point, appellant further contends 

that he made a confession under threat of death, that 

the influence of this confession continued down to and 

included the confession of guilt in open court and made 

the latter admission illegal. Appellant overlooks the fact 

that the trial court listened to his testimony about the 

alleged confession made at the penitentiary and found 

no merit in it. As was pointed out in the Hawk v. Olson 

case, the giving of such testimony, although uncontradieted, does not mean it must be accepted as true by 

the trial court. As has been pointed out by this court in 

previous eases, Capt. Henslee is deceased; further, the 

same judge presided at both hearings. 

This brings us to a consideration of the final contention advanced by appellant under his first point, 

namely, that the plea of guilty made in open court in 

the absence of counsel, is void. He cites Massiah v. United States. 377 U. S. 201, 84 S. Ct 1199 (1964). We 

rail to see the analogy. Massiah was free on bail and
1070	 WELLS V. STATE L241 

had obtained a lawyer; a government agent obtained a 

statement from Massiah in the absence of his attorney; 

the court, of course, held it to be inadmissible.. It is a 

rule of law firmly established that a defendant may intelligently waive right to counsel. In this instance the 

trial court advised defendant of his constitutional rights 

including right to counsel, and he waived it and entered 

his plea of guilty to second degree murder. We presume 

that Judge Smith explained the degrees of murder, and, 

as defendants oftimes do, Wells countered that he was 

not guilty of murder in the first degree. The next logical step is to take up the lesser degree, explain the dements of the charge and the punishment. At this stage 

of the proceeding, Wells apparently indicated his desire 

to enter a plea of guilty. Appellant certainly does not 

claim the trial judge did not follow the statutor y proce-

• dure.

The seuund heading of appellant's points—"Point 

II"—is to the effect that the confession made at the penitentiary was involuntary. As previously pointed out - in 

this opinion, the trial court found this contention to be 

without merit. We are sure the trial court was impressed, as we are, with the fact that these contentions 

are becoming stereotyped. For example, the pleadings 

in this respect by Wells are almost identical with the 

contentions made by the petitioner in Burks v. State, 

241 Ark. 1, 403 S• 2d 935 (1966). Furthermore, when 

Wells was brought before the court in 1957, he apparently did riot choose to reveal to the trial court the alleged 

acts of coercion which he now raises for the first time 

and''some eight years later. 

Affirmed.