Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.
This is an appeal from a denial of a writ of habeas corpus , raising primarily the question whether an attorney appointed by the court to represent a defendant in a criminal case was given sufficient time to prepare the defense and, if not, whether on that account the conviction is assailable here.
The defendant, now in prison and appearing pro se , was indicted with others for larceny of an auto. He retained an attorney who withdrew from the case before the trial. On March 15, 1948 at 10:45 A.M. (according to a transcript with which the prosecutor very helpfully has furnished us), the Court of Quarter Sessions assigned Louis C. Friedman, Esq., to represent him and another defendant indicted with him.
At 2:00 P.M. the case was moved. Mr. Friedman by then had had two and a quarter hours to prepare it for trial,
if one hour be allowed him for lunch. He asked for an adjournment, protesting he had not had time to prepare the defense properly, that to require him to proceed violated the defendants' constitutional rights, depriving them of their day in court. The prosecutor pointed out that the State had been ready with its witnesses twice. Mr. Friedman repeated that he had not had sufficient time, adding that, though he had spoken to the defendants (if we are to credit the prisoner's assertion, Mr. Friedman may have had a 15-minute talk with both defendants together), he had no witnesses to subpoena. The court then announced that if he had no witnesses, he would be in no better position on the morrow or the next day than he was that day, adding "Am I right?" Mr. Friedman started to reply: "Outside of --"; but the court, saying "Pardon me," interrupted him, telling him that the State could not finish the case that day and he would have from four o'clock that afternoon until the next morning to prepare. An exception was noted. Witnesses testified that afternoon for the State, and the trial lasted the next two days.
Article I, paragraph 10 of the Constitution of this State, and perhaps, too, the Fourteenth Amendment of the Constitution of the United States grant unto the accused here the right to the assistance of counsel in his defense. State v. Ballard , 15 N.J. Super. 417 (App. Div. 1951), affirmed 9 N.J. 402 (1951); Zasada v. State , 19 N.J. Super. 589 (App. Div. 1952). But clearly that right is denied him where counsel is assigned to him by the court so shortly before the trial as not to allow an adequate time to prepare the defense. Powell v. State of Alabama , 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); U.S. v. Helwig , 159 F.2d 616 (C.C.A. 3, 1947); McArver v. State , 114 Ga. 514, 40 S.E. 779 (Sup. Ct. 1902); Nelson v. Commonwealth , 295 Ky. 641, 175 S.W. 2 d 132 (Ct. App. 1943); State v. Jackson , 344 Mo. 1055, 130 S.W. 2 d 595 (Sup. Ct. 1939); Dolen v. State , 148 Neb. 317, 27 N.W. 2 d 264 (Sup. Ct. 1947); State v. Farrell , 223 N.C. 321, 26 S.E. 2 d 322 (Sup. Ct. 1943); Ex parte Cannis , 83 Okl. Cr. 113, 173 P. 2 d 586
(Crim. Ct. App. 1946); cf. Therman v. State , 205 Ark. 376, 168 S.W. 2 d 833 (Sup. Ct. 1943). This violation of his rights renders void any conviction entered against the defendant. Whether in any case enough time has been afforded for consultation, investigation for witnesses and preparation of the law and facts depends upon the circumstances of the case. In the following cases, set forth illustratively, the time allowed was inadequate: Bradley v. State , 227 Ind 131, 84 N.E. 2 d 580 (Sup. Ct. 1949), where 65 1/2 hours, including three nights and a Sunday, were allowed to prepare a case where defendant was charged with robbery by violence, and with inflicting physical injury; People v. McLaughlin , 291 N.Y. 480, 53 N.E. 2 d 356 (Ct. App. 1944), where 1 1/2 hours were allowed to prepare a robbery case; State v. Collins , 104 La. 629, 29 So. 180 (Sup. Ct. 1900), where four days were allowed to prepare a murder case; Jones v. State , 84 Tex. Cr. R. 4, 204 S.W. 437 (Ct. Crim. App. 1918), where two days were allowed to prepare a rape case.
If there be a reasonable doubt as to whether the court has left counsel enough time to prepare a case, that doubt must be settled in the prisoner's favor; the right to the assistance of counsel is too inviolable a matter for any court to indulge in nice calculations as to whether or not the defendant was prejudiced under the circumstances. Glasser v. U.S. , 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1941); Williams v. Kaiser , 323 U.S. 471, 65 S. Ct. 363, 89 L. Ed. 398 (1945).
The courts have warned that a defendant in a criminal case might discharge his counsel if he could delay the trial. Cf. Commonwealth v. Meyers , 290 Pa. 573, 139 A. 374 (Sup. Ct. 1927); State v. Longo , 132 N.J.L. 515 (Sup. Ct. 1945), affirmed 133 N.J.L. 301 (E. & A. 1945). However in the present case former counsel, engaged by the defendant, seems to have withdrawn voluntarily under other circumstances. Cf. McArver v. State , 114 Ga. 514, 40 S.E. 779 (Sup. Ct. 1902), supra. There is nothing to indicate that former counsel had adequately prepared the case and that Mr. Friedman had a chance to consult with him and
secure the benefit of that preparation. The court, in the matter of continuances, is vested with a wide discretion; but there are constitutional bounds to that discretion, and here they may have been exceeded. The writ of habeas corpus should issue and, if the circumstances prove to be as we have stated them, we are ...