#### Cornwell *v.*The State of Ohio.

*Criminal law*— Misconduct *of counsel*— Disagreement *in conducting defense*— Bight *of accused to fair trial*— Constitutional *law.*

(No. 17343

Decided December 30, 1922.)

Error to the Court of Appeals of Franklin county.

*Mr. Chas. R. Doll*and *Miss Daisy D, Perkins,*for plaintiff in error.

*Mr. John G. Price,*attorney general; *Mr. John R. King,*prosecuting attorney, and *Mr. J. A. Godown,*for defendant in error.

By the Court.

The plaintiff in error was found guilty of murder in the first degree, without recommendation of mercy, by a jury in the court of common pleas of Franklin county.

A motion for a new trial was overruled, and error prosecuted to the court of appeals, which affirmed the judgment below. Error is now prosecuted to this court to reverse that judgment, and for a new trial.

We have gone over the various assignments of error, and with particularity the entire record of the case, and have come to the conclusion that the plaintiff in error did not have the fair trial that is guaranteed to him by the constitution and the laws of the state.

An examination of the entire record discloses the fact that the defendant himself, a colored man of *627some 76 years, employed a member of the Franklin county bar as his counsel; that thereafter, after the trial was begun, and the jury impaneled, the trial judge appointed additional counsel, without the suggestion of the defendant or his own employed counsel.

The record discloses continuous and serious disagreements in the presence of the court and jury, concerning the line of defense to be adopted during the trial.

Counsel appointed by the court complained that he was denied by his associate counsel a list of the witnesses, and information as to what they would testify, and that he was otherwise greatly handicapped by his associate counsel failing and refusing to cooperate with him. Equally serious charges are made by the other counsel concerning the counsel assigned by the court.

Repeated conferences between the two members of the bar conducting Cornwell’s defense aggravated this disagreement, much of which took the form of disputing and wrangling in the presence and hearing of the jury, not only during the taking of evidence, but also in the arguments of counsel.

The defendant’s unfamiliarity with court procedure, being wholly inexperienced in the law, placed him absolutely at the mercy of his counsel and their serious and prejudicial wrangling. The record discloses that he was at times unable to decide as to whose advice to follow, and that he complained thereof, telling his counsel that he was unable to know what to do, or what course to pursue, on account of their contrary advice.

*628It would be unprofitable to spend any further time itemizing the numerous irregularities, improprieties and handicaps that grew out of the conduct of the defendant’s counsel, or to determine what effect each particular impropriety had in prejudicing the jury as to the defendant’s rights. It is sufficient to say that upon the whole record, especially as discussed and illustrated by counsel during the argument of this cause in this court, it is apparent that defendant did not have that fair trial and disclosure of all the facts and circumstances surrounding the transaction that the constitutional guarantees contemplate; and, without further comment, the majority of this court have no hesitation in holding that substantial justice has not been done, according to due process of law. We therefore reverse the conviction below and remand the cause to the court of common pleas for a new trial.

*Judgment reversed.■*

Marshall, C. J., Hough, Wanamaker, Robinson and Jones, JJ., concur.