State v. Oberst

273 P. 490, 127 Kan. 412, 1929 Kan. LEXIS 137

• Court: Supreme Court of Kansas
• Decided: January 12, 1928
• Docket: No. 28,533
• Status: Published

Opinions

The opinion of the court was delivered by

Dawson, J.:

This appeal presents for review certain proceedings in the district court of Butler county wherein a seventeen-year-old boy was sentenced to imprisonment for life upon his plea of guilty to the murder of his father and mother and his five brothers and sisters.

None of the facts concerning this seven-fold tragedy was developed in court by sworn testimony; and aside from a few inferences which may be gleaned from the record this court is entirely without dependable data upon which an intelligible statement of the case can be formulated. It seems, however, that the defendant, Owen Oberst, a lad of seventeen years, resided on a farm in Butler county with his parents and younger brothers and sisters, and that he attended high school at some distance from his home. And it may be inferred that all the members of his family except himself died a violent death at the farm home on April 20, 1928, although the record is altogether silent of facts to establish the corpus delicti or, more simply, that seven murders had been committed.

On May 5 the defendant was arrested on the charge of having murdered his entire family with a .22-calibre rifle. He was taken before a justice of the peace, where he apparently waived a preliminary examination and was bound over to the district court, and on the same day an information was filed charging him in seven counts with murder in the first degree. It may be inferred, also., that some sort of confession was made by defendant, but what, when, or to whom, does not appear. However, on the day of defendant’s arrest and waiver of a preliminary examination the presiding judge of the Butler county district court appointed eight persons as a commission,

“To investigate and confer with the defendant as they desired and to report generally as follows: whether any undue influence or coercion was used by any of the officers in securing any confessions or admissions from the accused in the above action.”

An explanation of this strange procedure is given in the brief of counsel for the state:

“As soon as the confession became public, numerous people in and around El Dorado at once began questioning the officers’ conduct, intimating coercion and third-degree methods, and it was for the protection of the officers as well as the defendant that the court appointed the commission of eight of the most reputable citizens of Butler county, four of them being attorneys, one a doctor, one a banker, another a teacher in the public schools and director of Boy Scout work, and the minister of the First Christian church' of El Dorado, all gentlemen of the highest integrity and in whom the public at large had the greatest confidence. The court knew that these gentlemen would return a finding of what the true situation was as they found it, and that this report would be made public, and in that way attempted to satisfy the public that no undue influence had been used on the defendant, and that every right of the defendant had been protected and that he was fully advised of all his rights.”

Four days later this “commission” reported their doings in writing, in part, viz.:

“We called the accused before us, caused him to be introduced to all the members of the commission, explained to him that the court had appointed us for the purpose of guaranteeing to him fair, proper and lawful rights, which he or any person accused of crime has. . . .

"... The commission asked many questions seeking to clear up apparent impossibilities in the statement, but were unable to get any clearer statement, defendant saying he did not recollect details which seemed important to us but which were not covered in the statement.

“We spent much time on hearing and assimilating the story of the defendant because of the gravity of the charge, and some inconsistencies in the statement of the details thereof, and also because of the immaturity of the accused and his apparent unfamiliarity with such matters and proceedings, and we desire to report as follows.

“1. That no undue advantage has in any way been taken of the accused by any of the officers; that his statements [record silent as to nature of these statements] have been free, voluntary and repeatedly made, sometimes varying in certain respects, but that in the main and as a conclusion of the matter, his statements have been made entirely without coercion or other overt influence, and wholly as a result of questioning or talking alone, and with no resort to violence or physical means or methods.”

Following this report of the committee of eight, the judge’s minutes, which supply the only record, recite:

“May 9, 1928. Defendant present in person and inquiry made of him whether he had seen the information filed against him and he having said no he was furnished with a true copy thereof and inquiry was made of him whether he desired the court to appoint an attorney to represent him, and he replied that he did not care, and thereupon the county attorney read the information on file, in open court, and the court inquired of the defendant whether he desired to plead guilty or not guilty, and he replied that he plead not guilty.”

It does not appear what next ensued upon defendant’s plea of not guilty, but a week later, according to the judge’s minutes, the following transpired:

“May 16, 1928. Defendant present and states in open court that he desired to plead guilty to the crimes of murder charged in the information. Court asked the defendant if he desired the court to appoint him an attorney or counsel and he replied that he did not care. Thereupon the court asked defendant how he desired to plead and he replied he desired to plead guilty to each of the offenses charged in information. The plea of not guilty was set aside and the court asked the defendant if he had any legal cause to show why the court should not sentence him, and he replied that he had none, and thereupon the court adjudged that the defendant be confined in the Kansas State Penitentiary for term of his life on first count, and a like separate sentence on counts, two, three, four, five, six and seven, and pay costs.”

A week later counsel for defendant appeared in the case for the first time. They filed a motion to remand the cause to the justice of the peace for a preliminary hearing for various reasons, viz.: that defendant had appeared there without counsel, that he was a farm boy of seventeen years and ignorant of his rights and wholly ignorant of the procedure and language used in the proceedings before the justice of the peace, that he had had no counsel until May 20, and that his attorneys could learn nothing of the status of his case until May 22, and that he had been denied his constitutional right to the assistance of counsel for his defense.

Two days later counsel for defendant also filed a motion to vacate the judgment and sentence and to permit defendant to withdraw his plea of guilty, on the ground that he was a minor seventeen years old and had no counsel to defend him and was ignorant of his rights, and that his first consultation with counsel was on May 20 after the judgment and sentence of the court had been imposed.

Thereafter, on June 1,1928, counsel for defendant filed a verified motion to require the sheriff to permit defendant to confer with his counsel, alleging that the sheriff and jailer had refused counsel the right to see the defendant, and that—

“3. The said sheriff, in so refusing and continuing to refuse and in so preventing and continuing to prevent counsel from seeing this defendant, when asked for his reasons for so refusing and preventing counsel from seeing their said client and conferring with him, gave as his sole and only reason that he desired to see the defendant put in the penitentiary, and that he, the said sheriff, intended to see that he was put in the penitentiary by every means at his command, and that he refused counsel permission to see their said client for fear said counsel would thwart said sheriff in his purpose of causing the said defendant to be put in the penitentiary. ‡

“5. Defendant, through his said counsel, states that he is a minor without guardianship; has been sentenced without counsel to the penitentiary for life seven times under one indictment of seven counts for the murder of seven different persons. That he secured the said attorneys as his counsel after such sentence so imposed at and during the present term of this court. That said counsel has filed in this cause, and there is now pending before this court two motions, one to remand for a preliminary hearing, and the other to vacate the judgment and sentence of this court and permit the defendant to withdraw his plea of guilty. That upon the disposition of same, imperative action, involving many facts and circumstances wholly within the knowledge of the defendant, must of necessity be immediately performed by counsel, and to deny counsel access to defendant at this time is a suppression of facts essential to orderly justice.”

In the affidavit in support of this motion it was recited:

“That when said attorneys asked him the reason for refusing them an interview with their said client, the said sheriff gave as his only reason and repeatedly stated during said interview for so denying affiants’ entrance into said jail, ‘I want to take him up to Lansing to the penitentiary, and I intend to do it if I have my way, and if I let you lawyers in to see him I don’t believe I will ever get to take him to the penitentiary.’ And that the said sheriff, E. E. McKnight, further stated, ‘You will never get in to see him as long as I am sheriff unless you go up to Lansing and see him there.’ ”

It may also be inferred that counsel for defendant wrote a letter to the presiding judge advising him of the filing of these motions, as on June 5 the judge wrote to counsel for defendant:

“Now in regard to your motion for permission to see Mr. Oberst will say that if you want to see him before Saturday you will please take the matter up with Mr. Taylor [county attorney]. He will arrange for you to see Mr. Oberst before Saturday if you care to do so. I talked the matter over with him when I was home and told him that the law gives a defendant the right to consult with his attorney at reasonable times, and I understand he agrees with me.”

On June 9, 1928, these motions came on for hearing. The motion to remand for a preliminary examination, and the motion to set aside the judgment and to permit defendant to withdraw his plea of guilty were overruled. The motion to require the sheriff to permit defendant to confer with counsel was sustained. As to the latter the court itself prepared the journal entry, reading—

“The court, after hearing the argument and statement of counsel and being fully advised in the premises finds that heretofore, to wit: On the 5th day of June, 1928, the defendant’s counsel was given written permission by the court to confer with the defendant, and at this time the court again grants defendant’s counsel permission to confer and advise with his attorneys and thereupon thejr did confer with the defendant herein.”

A motion in arrest of judgment was filed, setting up various grounds, including one that the whole record was insufficient to support a judgment. This motion was overruled, and seven 'life sentences were imposed on defendant, one for each count in the information.

Counsel for defendant assign and argue various errors suggested by matters outlined above — error in denying defendant’s application to remand for a preliminary hearing; in appointing the committee of eight to investigate the conduct of the county attorney and sheriff and the circumstances of an undisclosed confession of defendant; in arraigning defendant and setting aside defendant’s plea of not guilty and entering a judgment of conviction upon a plea of guilty without the advice of counsel; in denying defendant’s motion to vacate the judgment and to permit him to withdraw his plea of guilty; in overruling motion in arrest of judgment; and in abuse of the trial court’s discretion as disclosed by the entire record.

This entire assignment of error centers about the final error suggested by the record, so we might as well lay hold of it at once.

Did the trial court abuse its discretion in conducting these proceedings under review, permitting the seventeen-year-old defendant to withdraw his plea of not guilty to seven separate and distinct charges of murder in the first degree, and to accept his plea of guilty on all of those felonies, and in imposing seven separate sentences of life imprisonment thereon, all without the advice of counsel, and in declining to undo any of those proceedings at the solicitation of counsel for defendant after they had been employed in his behalf?

It is part of our fundamental law that a person on trial for a crime is entitled to the assistance of counsel for his defense (Bill of Rights, § 10). This right is intended to be adequately secure by our penal code (R. S. 62-1304), and the same doctrine is as thoroughly emphasized in our criminal jurisprudence as any one matter treated in the 125 volumes which chronicle the judicial deliberations of this court. In State v. Moore, 61 Kan. 732, 60 Pac. 748, it was declared that “a person accused of crime is entitled to the assistance of counsel at every step and stage of the prosecution.” In that case the defendant did have counsel, but he was required to plead in their absence. This court held that the incident was a “denial of a fundamental right and was material error.” In the court’s opinion it was said:

“In order that the accused may have the full benefit of this fundamental right, the legislature has provided that when he is about to be arraigned upon a charge of felony, and is without counsel and unable to employ any, it is the duty of the court to appoint counsel to conduct his defense, upon request. (Gen. Stat. 1897, ch. 95, § 160; Gen. Stat. 1899, § 4410.)

“So important is the presence of counsel regarded that it has been held to be error for the judge to repeat an oral charge to the jury in the absence of counsel for the defendant. (State of Louisiana v. Davenport, 33 La. Ann. 231.) In People v. Trim, 37 Cal. 274, it was held to be a fatal error for the court to give further instructions to the jury in the absence of the defendant’s attorney, although the defendant himself was present. In another case it was held that the accused could not be deprived of the guaranteed right to be represented by counsel because he was a lawyer, and that to compel him to proceed without counsel was a plain and palpable violation of a fundamental right. (People v. Naethaly, 105 Cal. 641, 39 Pac. 29.) His right is not limited to proceedings at and subsequent to the impaneling of the jury, but he needs and is entitled to counsel at every step and stage of the prosecution. It has been held that an accused person imprisoned and awaiting the action of the grand jury has a constitutional right to a private interview with counsel, and that such right could be enforced by mandamus. (The People, ex rel. Burgess, agt. Risley, 66 How. Pr. 67; 13 Ab. New. Cas. 186.) In State v. Summers, 4 La. Ann. 26, where it was claimed that a prisoner was denied the aid of counsel in exercising his right of peremptory challenge of jurors, it was decided that he had an undoubted right to such aid, and that no verdict could be sustained where it was refused.” (p. 734.)

In The City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233, the defendant was arrested and brought before the police judge on a charge of violating a liquor ordinance. He pleaded guilty and was sentenced accordingly, but afterwards he filed a motion for leave to withdraw it. This was denied and he appealed to the district court, where he made a showing that when arrested he was promptly brought into police court, that he had no lawyer to defend him and that he had no opportunity to employ counsel, and while he admitted in police court that he had sold liquor he was not guilty of a misdemeanor for reasons not here pertinent. The trial court refused to allow him to withdraw the plea entered in police court and refused to enter his plea of not guilty. He appealed. This court reversed the judgment, saying—

“We think the court below, upon this showing, should have sustained the motion, and permitted the defendant to withdraw the former pleas of guilty entered against him by the police judge. All fairness should be accorded to a defendant in a criminal case, in every stage of an examination or trial. No advantage should be taken on account of his being in court without counsel. It always should be one of the first duties of a court, where a defendant is charged with a crime and is about to be called upon to plead, to inquire whether he has or is able to procure counsel; and if not, and he desires it, to see that he has an attorney to represent him. When a plea of guilty has been entered against a defendant, who is without counsel, and there is a question as to whether he intended to plead guilty, the court should permit the withdrawal of such plea in furtherance of the substantial rights of the defendant.” (p. 15.)

In 2 Bishop’s New Criminal Procedure (2d ed.) 619, it is said:

“ § 795. Undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty instead of denying the charge. Yet in proportion to the gravity of the consequences the court should exercise caution in receiving this plea. Thus, where one tendered it in a capital case, the judges would not accept it till they had explained to1 him its serious nature, sent him back to his cell for reflection, brought him again into court, had the indictment read to him a second time, and examined witnesses as to his sanity, and whether or not promises of clemency had been made to him. These steps are not in form taken in all cases, but they illustrate an ever-present caution. And in some of the states there are varying statutory and other like devices to protect defendants from improvident pleas of guilty.”

Id. Heard’s Criminal Pleading (1879) 263, it is said:

“If it appears to the satisfaction of the court that the defendant rightly comprehends the effect of his plea, the plea of guilty is recorded, even in a capital case, and nothing further is done unless a motion in arrest of judgment is interposed, till sentence is awarded.”

But in the annotation supporting the above text the same author says:

“The courts, however, are usually backward in receiving and recording such a confession, at least in highly penal cases, and will generally advise the defendant to retract it and plead to the indictment. 2 Hale P. C. 225. 4 Stephen Comm. 394, 7th ed.; Commonwealth v. Battis, 1 Mass. 95.”

In 1 Greenleaf on Evidence (16th ed.) 349, 350, it is said:

“Judicial confessions are those which are made before the magistrate, or in court, in the due course of legal proceedings; and it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate, pursuant to statutes; and the plea of ‘guilty’ made in open court to an indictment. Either of these is sufficient to found a conviction, even if it be followed by sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge. . . .

“In the United States, the- prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law.”

In the Kansas cases cited above, one of the defendants was merely a horse thief and the other a liquor vendor, both grown men. In the case before us the defendant was a seventeen-year-old boy •charged with seven murders. The one thing this youngster needed more than anything else before pleading guilty to such a horrifying .accusation was consultation with and the advice of a good lawyer, and it is not easy for us to grasp the attitude of the trial court which quite overlooked a precaution so essential to the due administration of justice. By way of contrast, it is worth while to ■consider how the murderer of President McKinley was dealt with in the criminal courts of New York as recorded in 14 American State Trials, 159 et seq. When Leon Czolgosz was arraigned in the county court at Buffalo, N. Y., for the murder of the president, the fact of his guilt of that shocking crime was known around the world, but every step in the state’s procedure for the administration of justice was scrupulously observed nevertheless. The record recites :

“September 16 [1901].

“ ... At 5:40 the prisoner was brought into the county court. . . .

“Mb. Penney, district attorney: Czolgosz, have you a lawyer?

“The prisoner shook his head and when the question was repeated he gave a simple stare.

“Mr. Penney: Czolgosz, you have been indicted for murder in the first degree. Do you want counsel to defend you? Look at me and answer.

“The prisoner remained mute.

“Mr. Penney: As the accused declines to answer, I suggest that counsel be assigned by the court to advise him what to do and to defend him.

“The Court: Czolgosz, you have appeared for arraignment in court without counsel. The law makes it the duty of the court to assign counsel for you. . . . The court therefore assigns the Hon. Loran L. Lewis and the Hon. Robert C. Titus as your counsel.” (pp. 164, 165.)

On motion the case was transferred to the supreme [trial] court where the defendant was again arraigned. The same record (pp. 169, 170) reads:

“The Court: Czolgosz, you are indicted and charged with having committed the crime of murder in the first degree. It is alleged that you on the 6th day of September of this year unlawfully shot and killed William McKinley contrary to law, how do you plead?

“The Prisoner: Guilty.

“The Court: That plea cannot' be accepted in this court. The clerk will enter a plea of not guilty and we will proceed with the trial.

“Mr. Penney : This defendant appeared in the county court last week, and at that time Judge Emery assigned as his counsel the Hon. Loran L. Lewis and the Hon. Robert' C. Titus, and his associate, Mr. Ladd, to attend to the case and ascertain the rights that this man had and to put in such defense as to them they deemed best. They are here to attend to that in this court this morning. I will ask Your Honor to confirm that assignment. . . .

“The Court: It certainly accords with the views of this court that' gentlemen like yourselves [Messrs. Lewis, Titus and Ladd] should have been appointed by the county court to defend this prisoner. It gives to the public and the court, and those engaged in the administration of the law absolute assurance that the prisoner will receive fair treatment during the progress of this trial, and that he will meet with such justice as the law demands in his behalf as he is assured by the fundamental law of the land. ... It' is my pleasure to not only confirm, but if it should be deemed necessary, appoint and designate you to the task which you have set out to perform.”

There is not in Kansas, as in New York and elsewhere, a positive statutory inhibition against a plea of guilty in a case of murder in the first degree; but how much better would it have been in this case if the county attorney had followed the example of the district attorney in the Czolgosz case, or if the trial court had drafted one or more of the lawyers who served on that “commission” to represent the youthful defendant.

To uphold the proceedings under review, the best that counsel for the state are now able to do is to recast the question this court has to solve into an inquiry whether it was error for the trial court not to force counsel upon the defendant whether he wanted counsel or not. And the literalism of the statute (R. S. 62-1304) is seized upon to justify such a formulation of our problem. Such has never been-the interpretation of our bill of rights, nor of our statute, nor our own decisions or those of any American or English court in modem times. It is suggested that there are many prisoners incarcerated in our penal institutions on pleas of guilty given without advice of counsel. We doubt that, and would be sorry indeed if it were true, particularly, if they are 17-year-old lads who without legal advice pleaded guilty to murder in the first degree. Certainly we are not anxious to share the responsibility for such a lamentable situation. We are well assured that the common practice in the district courts of this state is not to accept a plea of guilty in any felony case except on the well-considered advice of counsel for the prisoner; and some careful judges take other precautions to avoid miscarriage of justice which need not now be discussed. One thing is certain, this court has never affirmed a judgment of penal servitude on such a record as here presented. Even the justice of the peace who bound over the defendant swore he did not know for sure whether the lad understood what he was about or not. On the hearing of the motion which raised the question whether defendant had waived a preliminary examination, the justice of the peace testified:

“I asked him [defendant] first, as I remember it, if he knew what he was charged with. He said that he did. ... I explained to him what he was there for and the purpose of the preliminary examination and asked him whether or not he wished to waive his preliminary examination or whether or not he wished it set down for a definite date for hearing. He, of course, didn’t understand that and I went — . . . .

“A. As I remember it, he said that he wanted to plead guilty. A plea of guilty I told him could not be made in justice court — couldn’t be accepted— and I told him — the county attorney or myself made the statement that if those were his wishes the only thing he could do would be to waive his preliminary examination, and later on he did waive his preliminary examination. . . .

“A. I went into it very thoroughly because of the gravity of the offense and because of the fact that the boy was very young. . . .

“Q. Could you get any reaction from him as to whether he was understanding or paying any attention to what you did say? . . .

“A. Yes, I thought he understood it.”

However, this court is not prepared to say that the trial of this defendant could not have gone ahead in the district court on this showing. (State v. Handrub, 113 Kan. 12, 213 Pac. 827; Hancock v. Nye, 118 Kan. 384, 234 Pac. 945; State v. Miner, 120 Kan. 187, 243 Pac. 318.) What this testimony of the justice did develop was the indispensable need of a competent and courageous attorney to give absolute assurance that some responsible person charged' with the solemn duty of caring for defendant’s interests did understand what was being done in his case.

We have already remarked that the record does not reveal any of the facts of the seven crimes charged against defendant. The corpus delicti was taken for granted. The most light we can glean is supplied by a dialogue between the trial court and the defendant:

“By the Court: There are seven counts in the information. As I remember them in a general way, one of them charges the killing of your father and another your mother, and then there are five counts that charge the killing of your five brothers and sisters. You understand there are seven charges made against you in the information? A. Yes.

“By the Court: And you are pleading guilty to all seven of them? A. Yes, sir.

“By the Court: How did you come to do this? A. Well, I — just the way my dad treated me. He didn’t care what he did.

“By ti-ie Court : I have never seen the original confession I understand you signed, though I have read in the newspapers about it. In that confession, as I remember it, the statement was made in substance that you had killed all of these people with one shot each of a target rifle. A. Yes, sir.

“By the Court: That doesn’t occur to me as being possible. A. Well, it is.

“By the Court: And especially in view of the fact that I understand you had said you pointed the gun at these members of your family and shut your eyes and pulled the trigger. A. Yes, sir.

“By the Court: Do you know where the bullets — what part of the body the bullets struck each one? A. I think right about the heart.

“By the Court: Right about the heart? A. Yes, sir.

“By the Court: Did any of them try to take the gun away from you, or anything of that kind? A. No.

“By the Court: Did any of them try to get away or run? A. No.

“By the Court: The five children were in the kitchen at the time you started the shooting? A. Yes, sir.

“By the Court: Did you shoot all five of them, one right after the other? A. Yes, sir; I did.

“By the Court: And then your mother? A. Yes, sir.

“By the Court: And then your father? A. Yes, sir.

“By the Court: Did any of the five of your brothers and sisters make any effort to get out through the doors or escape from you, or— A. No, sir; they didn’t.

“By the Court: —or to take the gun away from you, or anything of that kind? A. No, sir; they didn’t.”

The foregoing dialogue prompts one observation, which is, however guilty this defendant may be, the court did not succeed in getting at the truth. No person can put seven bullets through the hearts of seven persons in seven shots with his eyes shut.

Other matters urged in appellant’s behalf need only brief comment. The conduct of the sheriff in refusing access to the defendant and to unmolested and private consultation with him was peculiarly reprehensible. It was tantamount to oppression in office, of a character which standing alone would have seriously imperiled the success of the state’s case; and for which a civil action against the sheriff personally has sometimes been upheld. See notes in 23 A. L. R. 1382 and 54 A. L. R. 1220. The attitude of the county attorney toward the delinquency of the sheriff was not commendable; and the belated judicial relief obtained from the trial court or, more precisely, from the judge, to correct such situation was merely an informal letter saying that he had taken up with the county attorney the motion of counsel and understood the county attorney agreed with him, and that counsel for defendant could make arrangements with the latter to secure what they were entitled to— a convenient and sufficient opportunity to consult privately with their client.

Surely this court cannot be expected to uphold the practices which characterized the proceedings disclosed by this record. We cannot' stultify ourselves by writing an opinion to sustain them which will be printed in a book for lawyers and judges to read.

So far as concerns the “commission” appointed by the court or judge to investigate the conduct of the sheriff and county attorney and whether the defendant had made a confession of crime, and if so what or how many crimes, and whether such confession was unconstrained and understandingly made, a majority of this court hold that such a procedure was grossly erroneous, altogther unknown to and unauthorized by the penal code. We can give it no countenance whatever; and the significance given to its “deliberations” and “report” by counsel for the state only makes it perfectly clear, if that did not otherwise already appear, that the judgment entered in this case was brought about by suck a startling departure from correct procedure for the administration of justice that it cannot stand.

In, a belated supplemental brief submitted by the state a copy of what purports to be a confession verified by the defendant is set forth. But this confession was never brought into the record. The trial court never saw it; all he knew about it was something he had read about it in the newspapers; consequently it can add nothing to the validity of this judgment. In this brief, also, are citations of cases from other states where pleas of guilty were received without advice of counsel. We have examined them all. In Barnes’ Case, 92 Va. 794, the defendant was a woman, but the record does not show what was the nature of her offense. Neither is the nature of the offense disclosed in State v. Raney, 63 N. J. L. 363. In State of Louisiana v. De Serrant, 33 La. Ann. 979, the offense was grand larceny; in Baker v. State, 9 Okla. Cr. 62, the crime was larceny of live stock; in State v. Moore, 121 Mo. 514, it was burglary; and in State v. Terry, 201 Mo. 697, the plea of guilty was upon a charge of felonious assault. In none of these was the defendant a mere boy, and none of the offenses arose to the gravity of murder. Without approving or condemning the practice of accepting a plea of guilty on miscellaneous charges of crime without advice of counsel, we can see how mature criminals who know quite well what they are about may be permitted to do so; but where the charge is murder' in the first degree and the punishment necessarily imprisonment for life, and no possible advantage or leniency to the defendant could be gained by pleading guilty thereto without the advice of counsel, such a plea should only be received with great circumspection. From a seventeen-year-old boy it should not be so received at all.

The state’s brief is also concerned with the complications which will arise over the administration of the estates of this defendant’s parents if the judgment on his plea of guilty is not permitted to stand — an argument that only strengthens our conviction that other matters than that of due observance of the orderly procedure for the administration of justice in criminal cases were given too much concern throughout this case.

The judgment is reversed and the cause remanded to the district court with instructions to grant defendant’s motion to withdraw his plea of guilty and for further proceedings consistent herewith.