DOYLE, J.
This appeal is from a judgment of conviction of murder and sentence of imprisonment for life at hard labor, rendered upon a plea of guilty, entered by appellant, Charley Polk, upon his arraignment on an information charging him and others with the murder of one Jake Brooks.
Counsel for appellant on the second day after judgment was rendered filed a motion to set aside the judgment and permit appellant to withdraw his plea of guilty and substitute a plea of not guilty instead, which motion was by the court overruled.
To reverse the conviction appellant assigns errors, in substance as follows: That the court was without jurisdiction to render said judgment; that the order of the court in overruling the motion to set aside the judgment and grant a new trial was contrary to law, and was an abuse of the court’s discretion; that the court erred in not informing appellant of his right to have counsel before being arraigned, and in not asking him if he desired the aid of counsel as required by law; that the court erred in not appointing a time for pronouncing judgment as required by law; that the court erred in failing to ask appellant before judgment if he had any legal cause to show why judgment should not be pronounced against him.
It appears the homicide was committed January 14, 1922; appellant, then a few days over 19 years of age, was arrested January 22 and placed in the county jail at Oklahoma City. January 24 a justice of the peace, with counsel for the state, appeared in the county jail; there the defendants Lee Whitley, Elmer Yearta, another 19 year old boy, and appellant, Charley Polk, each waived preliminary examination, and were then taken from the jail to the courthouse. In the meantime the information was filed in the district court, Judge Phelps, presiding. Thereupon the following proceedings were had:
"Mr. Hughes (county attorney): I desire to read the information in this case, if the court please, and arraign three of the defendants.
"The Court: All right; all the defendants present in the court may stand up. Proceed, Mr. Hughes. (Mr. Hughes reads the information.)
"Mr. Hughes: The defendants we are now arraigning are Lee Whitley, Charley Polk, and Elmer Yearta. There were five men bound over, if the court please, but, for dif
ferent grounds and different reasons I will tell the court of later, we will arraign the three white men at this time, and arraign the colored persons later.
“The Court: Lee Whitley, is that your correct name?
“Defendant Whitley: Yes, sir.
“The Court: Do you desire to enter a plea to the charge? That is, to announce to the court whether you are guilty or not guilty?
“Defendant Whitley: I am guilty, but I would like to make a statement.
“The Court: Well, just a minute. You understand, do you, it is for the court to either send you to prison for life or to the electric chair, if you enter a plea of guilty?
“Defendant Whitley: Yes, sir.
“By the Court: Understanding that you still desire to enter a plea of guilty, do you?
“Defendant Whitley: Yes, sir.
“The Court: Have any promises been made you or inducements offered you to enter a plea of guilty?
“Defendant Whitley: No, sir.
“The Court: You do it of your own free will and accord, understanding the consequences?
“Defendant Whitley: Yes, sir.
“The Court (to defendant Charley Polk): Mr. Charley Polk, is that your correct name?
“Defendant Polk: Yes, sir.
“The Court: Do you desire to enter a plea to the charge against you?'
“Defendant Polk: Yes, sir.
‘1 The Court: What is that plea ?
“Defendant Polk: Guilty.
“The Court: And, repeating the same questions that I have just repeated to Mr. Whitley, how do you answer those questions? Just as he did?
“Defendant Polk: Yes, sir.
“The Court: You understand, do you, that the consequences are very serious?
“Defendant Polk: Yes, sir.
“The Court: And, understanding that, you desire to enter a plea of guilty?
“Defendant Polk: Yes, sir.
“The Court: You do it of your own free will and accord?
“Defendant Polk: Yes, sir.
“The Court: Nobody has offered you any inducement or persuaded you to enter the plea of guilty?
“Defendant Polk: No, sir.
“The Court: You do it of your own volition?
“Defendant Polk: Yes, sir.
“The Court: Charley Polk, do you desire to make any statement?
“Defendant Polk: Yes, sir.
“The Court: All right.
“Defendant Polk: I come up by the Union Hall there, and the bunch was fixing to go where they were going, out in front of the Union Hall; this Yearta boy, Elmer Yearta, was standing there at that time; I says, ‘Where are you going?’ He said: ‘We are going over to a dance,’ and he said, ‘We are going to break up this dance some way,’ and so I got in the ear, and they said they was going to be some other cars, and I got in the car, and went from there and across on up to meet the first car, and they was all
right there, and I think one car got there, and they come on down where we was, and we waited awhile for the others, and Nathan says they would come down; he said he knew where one colored fellow lived; he said he knew, where this fellow lived or worked out there, so, when we got down to the other car, I don’t know what else they said, and went on out there, and they stopped up back of his house, about a block, I guess, and some of them went back to the house, and waved for the last car, and I didn’t know what they was going to do, and I asked one of the boys: ‘What are they going to do?’ He said he didn’t know. Nathan come back to this car, and told me, he said, ‘Go and get in Harris’ car,’ and I went and got in the back seat of Harris’ car, and they drove up in front of this house; then that boy got out and went to the door and knocked on the door, and this nigger come out, and they brought him out there and put him in the back seat with me; he asked me ‘What are they going to do with me?’ I says ‘I don’t know.’
“The Court: Let me interrupt you to ask you if the party who brought him out, did he have a gun drawn on him?
“Defendant Polk: I think he did; he came like this (indicating).
“The Court: And he came out against his will, then?.
“Defendant Polk: Yes, sir.
“The Court: All right.
“Defendant Polk (continuing ): And he got in the car, and we went on down Fourth street and turned south, and drove on down and went under that bridge until we struck the Boulevard, and went out to where they stopped, and they was two of them went up to Lee’s car and come back and started the car any way, and drove on up there where they hung him, and these boys, they got out of the car, and he asked again, ‘What are they going to do with me?’ I said, ‘I don’t know; I don’t know what they are going to do with you.’ And he said, ‘Don’t let them kill me’; and I said,
‘I will do all I can.’ And they got out of the car, and I didn’t think they was going to hang him. When I got out there, this nigger said he was going to lynch him, and him and Nathan was talking, and Nathan said, ‘I told you I would get you.’ And this colored fellow says, ‘Well, Nathan, I was drunk’; and he says, ‘That don’t make any difference or don’t help you a bit,’ and he took him, and led him out there, and he got out there. He said, ‘Who has got a rope?’ And some one said, ‘There is one in John Harris’ car,’ and he told this man Allen to go and get it, and he went and got the rope and brought it over there, and Nathan tied it to the tree.
“The Court: Nathan tied the rope in the tree first?
“Defendant Polk: Yes, sir.
“The Court: Did he have to climb the tree?
“Defendant Polk: Well, he just jumped up and caught it in his hand, and tied the rope, and then, when he tied his hands first, he tied the rope to the tree, and fixed the knot, and told this nigger to get his damn head under there; this nigger was trying to talk to him, you know, and he told him — he said he didn’t have any time to fool with him, and told him to get his head under there, and he put his head in the rope, and, let’s see — there was two boys, this Allen and Nathan got hold of each leg, and one of the boys got hold of the end of the rope, and they strung him up and they held him up there until he died. He said, ‘Good-bye, boys,’ and when he said that we just turned and walked off. I told them, ‘Boys, if you do whip him, whip with the rope, and not hang him,’ and Nathan said, ‘We are going to hang him.’ He said he wouldn’t take any more grub from his babies.
“The Court: He said what?
“Defendant Polk: He said he wouldn’t take any more grub from his babies.
“The Court: Did you do anything to prevent them from hanging him?
“By Mr. Polk: Nothing, only said it would be best not to hang him.
“The Court: What did you do towards helping to hang him? Did you also help boost him up?
“Defendant Polk: No, sir.
“The Court: What did you do?
“Defendant Polk: I didn’t do anything to help hang him.
“The Court: You stood by and watched them do it?
“Defendant Polk: Yes, sir.
“The Court: How many of them lifted him? “Defendant Polk: Two.
“The Court: And then how many pulled on the rope?
“Defendant Polk: There was three, I think, pulled on the rope.
“The Court: How many automobiles were there in the party?
“Defendant Polk: Two.
“The Court: Well, did you — how many guns did you see?
“Defendant Polk: Two guns.
“The Court: All right.
“The Court: The union officials and officers knew nothing about this arrangement between you boys, I suppose, did they? Did they or did they not?
“Defendant Polk: I don’t know if they did; I didn’t know it if they did.
“The Court: I will ask all three of you boys just the same question: Did you think that it was the proper method of winning the strike by taking the life of a strike breaker?
“Defendant Whitley: No, sir.
“Defendant Polk: No, sir.
“Defendant Yearta: No, sir.
“The Court: Well, the story that you boys haye told convinces me beyond any question that although you may not have helped to swing the boy to the tree, or the fellow to the tree and take his life, that you were just as guilty as those who' did, and your conduct, as related by yourselves, I think, richly merits for you the electric chair. Mr. County Attorney, have you anything to say?
“The Court: The question as to whether the strike wins or loses, or the question as to which should prevail, the union or the open shop, has absolutely nothing to do with this case. The question before this court is: Shall the laws of the country be upheld? shall the people be required even under the stress and pressure of excitement to obey the law, as good citizens, or shall they brush the laws of the country aside and take the laws into their own hands? It’s not a pleasure to this court to inflict punishment upon you young men, because you are young men; you are capable of better things and capable of a better end than that to which you have come. Upon the recommendation, however, of the county attorney and his assistants and the Assistant Attorney General, who have investigated the matter thoroughly, it will be the sentence that each of you will be sentenced to the state penitentiary at McAlester for life.
“The Court (to defendant Polk) : Mr. Polk, it is the judgment and sentence of this court that you be taken.from the bar of this court to the county jail, and from there to the state penitentiary at McAlester, where you will be required to serve at hard labor for the period of your natural life.
“The Court: That will be all. You will now be in charge of the sheriff.’’
„ The motion to vacate and set aside the judgment and for leave to withdraw the plea of guilty and to enter a plea of not guilty was filed January 26, the second day after judg
ment was pronounced orally, and two days before the written judgment was signed by the presiding judge and filed by the court clerk.
The grounds of the motion are that the judgment is illegal and not rendered according to law; that defendant was induced by promises and threats of officers and detectives to plead guilty to the charge of murder; that defendant, a minor, charged with a capital offense, was denied the benefit of counsel, and was not apprised of his legal rights, and did not waive his statutory time for judgment and sentence; that defendant is not guilty of murder.
February 1, 1922, upon a hearing on the motion, said motion was overruled and denied. Exception reserved.
No briefs .have been filed, and there has been no appearance on behalf of appellant in this court; however, we have given this case that careful study which its importance requires. On the record before us we are convinced that this defendant was not accorded a trial in conformity to the laws of this state.
In the Bill of Rights are these provisions:
Sec. 7. “No person shall be deprived of life, liberty, or property, without due process of law.”
Sec. 17. “No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. ’ ’
Sec. 20. “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the aceused, in such manner as may be prescribed by law. He shall be in
formed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”
In the Code of Criminal Procedure are these provisions:
“When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform Mm of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had.” Section 2484, Comp. Stats. 1921.
“He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena.” Section 2485, Comp. Stats. 1921.
“The magistrate must without a jury, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, after waiting a reasonable time therefor, proceed to examine the ease.” Section 2486, Comp. Stats. 1921.
“At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He must also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant.” Section 2490, Comp. Stats. 1921.
“'When, the indictment or information is filed, the defendant must be arraigned thereon before the court in which it is filed, if triable therein; if not, before the court to which it is removed or transmitted.” Section 2577, Comp. Stats. 1921.
“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” Section 2590, Comp. Stats. 1921.
“If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” Section 2595, Comp. Stats. 1921.
“The court may, at anytime before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Section 2621, Comp. Stats. 1921.
“If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.” Section 2627, Comp. Stats. 1921.
“After a plea or verdict of guilty, *
* *
the court must appoint a time for pronouncing judgment.
“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.” Sections 2759, 2760.
“When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.” Section 2768.
“If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered.” Section 2770.
"An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the ease may be reviewed." Section 2805.
A plain reading of these provisions is conclusive o.f the questions presented by the record, and it is affirmatively shown by the record that these requirements of the Constitution and the statutes were not complied with. It is apparent from the record that appellant was not sufficiently advised of his rights by the trial judge. 'He was not informed of > his "right to a speedy and public trial by an impartial jury of the county," and that in case he was tried by a jury and found guilty of murder the jury in its discretion would have the right to decide whether the punishment to be imposed should be death or imprisonment for life.
The record affirmatively shows that the trial court did not inform him of his right to have counsel before being ar-' raigned, and did not ask him if he desired the aid of counsel, or inquire as to whether or not he was able to employ counsel, or advise him that, if he was unable to employ counsel, it was the duty of the court to assign counsel to defend him, nor was he informed by the trial court that he must be allowed at least one day to answer the information, unless he waived this right.
It was affirmatively shown that appellant was not accorded his constitutional right of representation by counsel until after judgment and sentence, and that he did not waive the same. The right of the accused to the assistance of counsel has long been regarded in this country as essential to the due administration of justice in criminal cases.
Says Mr. Cooley:
“With, us it is a universal principle of constitutional law that the prisoner shall be allowed a defense of counsel.” Const. Lira. 334.
In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial.
The record does not show that appellant was at any time furnished with a list of the witnesses to be called in chief to prove the allegations of the information, together with their post office addresses, or that he was served with a copy of the information, nor does the record show that he waived these constitutional rights.
In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, it is said-
“That the provision of the Constitution requiring that in capital eases a defendant shall have the right to have at least two days’ notice of the list of witnesses to be used in chief against him, together with their post office addresses, confers a valuable right upon a defendant in a capital case- cannot be denied. ’ ’
And that:
“It is the duty of the courts to protect a defendant in a capital ease in the full enjoyment of this right.”
In Spess v. State, 13 Okla. Cr. 277, 164 Pac. 131, it is said:
“Under the last provision of this section of the Constitution the accused in capital cases does not have to demand a list of the witnesses together with their post office addresses, but the Constitution makes that demand for him. And, unless hé waives it, he cannot be legally put upon trial until that demand has been complied with.”
In Goben v. State, 19 Okla. Cr. 220, 201 Pac. 812, it was held:
“That under this provision of the Constitution the defendant in a capital case does not have to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with, unless the defendant has waived this right.”
It is undoubtedly the law that the accused in any criminal action is entitled, as a matter of right, to require in the first instance a compliance with the ordinary rules and forms of law that secure to him a fair and legal trial.
It appears from the testimony taken on the motion to set aside the judgment that from the time appellant was arrested and placed in jail and until after the judgment was rendered he was held practically incommunicado, and was not permitted to see his father and mother. It is conceded that he told the officers he wanted to see a lawyer; that he signed a written statement which the witnesses for the state refer to as a confession; however, this alleged confession was not introduced in evidence.
It may be well for us to say here that we do not determine whether or not the proceedings had in the county jail before the examining magistrate was a sufficient compliance with the requirements of law to give the district court jurisdiction, because the record of the proceedings before the committing magistrate is not before us.. In view of another trial the question can be raised by motion to set aside the information.
The general power of a court to reconsider its judgment and sentence, and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in operation, is undeni
able. Bish. New. Cr. Proc. par. 1288, and eases cited. This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60.
It follows that it is within the discretion of the trial court to vacate a judgment of conviction rendered on a plea of guilty and to permit the plea to be withdrawn. Heath v. State, 23 Okla. Cr. 382, 214 Pac. 1091.
We think this rule is in accord with the- principles of justice.
In Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593, it was held:
A “plea of guilty may be withdrawn, and new trial awarded on the affidavit of the defendant with corroborating proof that such plea and the submission of his case were made through fear and official misrepresentations, and in ignorance of his rights.”
In State v. Olson, 115 Minn. 153, 131 N. W. 1084, it was held:
“An application to be permitted to withdraw a plea of guilty to a criminal charge after judgment of conviction thereon is addressed to the sound discretion of the trial court. ’ ’
In Krolage v. People, 224 Ill. 456, 79 N. E. 540, 8 Ann. Cas. 235, it was held:
“The defendant in a criminal prosecution should be permitted to withdraw his plea of guilty when unadvisedly given, where any reasonable ground is offered for going to the jury; and while this is a matter within the discretion of the court, the discretion is a judicial one which should always be exercised in favor of innocence and liberty.”
And see People v. Manriquez, 188 Cal. 602, 206 Pac. 63, 20 A. L. R. 1441, and cases collated, annotation p. 1447.
To the same effect see State v. Maresca, 85 Conn. 509, 83 Atl. 635, wherein the court said:
“If the accused * * * pleaded guilty, without fully understanding the significance and effect of his answers, and of his plea of guilty, the judgment and sentence should, under the circumstances, have been opened and the accused permitted to withdraw his plea of guilty.”
In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law. The plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In a certain sense pleas of guilty in criminal proceedings have been discouraged by the courts. In some states pleas of guilty to the charge of murder are not received. In others on a plea of guilty the case must stand continued for judgment and sentence. In still others a jury must be impaneled in capital cases to assess the punishment. However, the uniform holding of the courts is that in capital cases a plea can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea. Here there was no attempt whatever on the part of the court to inform the defendant of his rights, or to state the effect of the plea of guilty. The record shows the court asked the defendant Whitley whether he understood, if he pleaded guilty, that it was for the court to either send him to prison for life or to the electric chair, and the mere inquiry to appellant was, “Repeating the same questions I have just asked Mr. Whitley, how do you answer those questions? Just as he did?” appellant answering, “Yes, sir.” The court then stated, “You understand, do you, that the consequences are very serious, and, understanding that, you desire to enter a plea
of guilty;” appellant answering, “Yes, sir.” This was no explanation whatever of his legal rights on the part of the court.
It should be said in passing and in this connection that appellant by his statement to the court qualified his plea of guilty. Upon the facts as stated by him to the court he was not guilty of the offense charged. It may be stated as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity. When the accused is present and aiding and abetting another in its commission he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such' circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the. aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the
transaction or connect Mm criminally with the killing. Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822.
All persons are by our laws entitled to a fair trial in absolute freedom from restraint and from fear. It is almost mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty, forced from him by fear that to do otherwise would result in his being condemned to death. While promptness in the apprehension and trial of persons accused with crime is commendable, the law has provided how trials should be had, and the enforcement of law is to be arrived at only by adhering to legal requirements and principles of justice and fair trials, as provided by constitutional provisions, legislative enactments, and well-established rule of law.
The facts which are undisputed in this case are that appellant, a poor and friendless 19 year old boy, was placed in jail, and the only communication between him and anybody, after he was placed in jail and until after the judgment of conviction was pronounced, was had with the prosecuting attorneys, officers, and detectives, without friends or advice or the benefit of counsel. It seems he waived his right to a preliminary examination, and was then taken to the courtroom-where, wit£out the benefit of counsel or being informed of his rights by the court, he entered a plea of guilty, and was by the judgment of the court sentenced to imprisonment for life at hard labor.
To hold that a conviction, obtained as shown by the record in this case, should be affirmed would be to inaugurate in these latter days that relic of oppression and tyranny known as the “star chamber.” Our Constitution and statutes should not receive such construction as would bring about such result. Such construction should be placed upon
constitutional provisions and statutory enactments that do not lead to injustice, wrong and oppression. Such rules of interpretation should be adopted and enforced as will insure to our citizens what the framers of the Constitution intended should be — fairness of trial in a public and open manner, and with due notice, before their lives, liberty, and property are sought to be taken.
Our laws have been made for observance and not for evasion, and it is the duty of trial courts in the administration of the law to see that the accused, whether guilty or innocent, shall have a fair trial according to the due and orderly course of the law, and this duty is emphasized in a capital case.
It has been well said that the law is not designed to be a swift engine of oppression and vengeance, but it was and is designed to try and convict men only after due hearing and a fair trial.
In conclusion we simply add that it is apparent from the record, which we have set out in full, that the overruling of the motion to vacate and set aside the judgment of conviction was a manifest abuse of judicial discretion.
In view of the foregoing, the judgment of conviction is reversed, and the case remanded for proceedings consistent with this opinion.
The warden of the penitentiary will surrender appellant, Charley Polk, into the custody of the sheriff of Oklahoma county, who will keep him in custody until discharged therefrom according to law.
MATSON, P. J., and BESSEY, J., concur.