¶1(dissenting). From the conclusion of the court that section 2137 of Kirby’s Digest has been complied with, I dissent.
¶2The testimony of Wakelin, giving its strongest probative force, shows that at the beginning of the trial the municipal judge asked appellants, “Have you counsel?” or “Do you want counsel?” Conceding that this testimony was some substantial evidence to prove that the magistrate before commencing the examination inquired of appellants whether they desired the aid of counsel, still the testimony does not show, nor tend to show, that the examining’ court allowed appellants a reasonable opportunity for procuring counsel.
¶3The witness does not testify that the appellants answered the question propounded. There is not a syllable of testimony in the record proving, or tending to prove, that the examining court advised appellants that they were entitled to be represented by counsel or that it gave them, or offered to give them, an opportunity to procure counsel. The testimony of the presiding’ judge, himself, and of the court stenographer, shows that no such suggestion was made to the appellants, and that no opportunity was offered or given them to procure counsel.
¶4The burden was upon the State to prove facts sufficient to lay the foundation for the introduction of secondary evidence.
¶5The undisputed testimony, as I view the record, proves that such foundation was not laid in the particulars above mentioned.
¶6The court, therefore, erred in permitting the introduction of this secondary evidence. The testimony was material and highly prejudicial to the rights of appellants, and if the above statute is mandatory, the error is one for which the judgment should be reversed and the cause remanded for a new trial.
¶7Since the majority of the court refrain from deciding whether the statute is mandatory or directory, I need not discuss at length that question. Be it said to the glory of American jurisprudence that the Constitution of the United States and the Constitution of every State in the Union guarantee, in some form, that in all criminal prosecutions, the accused shall have the right to be represented by counsel. Amendments to Constitution of U. S., art. 6; Kettleborough on State Constitutions.
¶8The language of our Constitution is, “In all criminal prosecutions the accused shall enjoy the right … to be heard by himself and his counsel. ’ ’ Const, of Ark., art. 2, § 10.
¶9This provision of the Constitution is mandatory. The provisions of the statute, under review, were undoubtedly intended by the Legislature to make effectual to eveiy person accused of crime, the above all important and sacred guaranty of the Constitution, at the very incipiency of a criminal prosecution instituted against him. That is the time, above all times, when he most needs the aid of counsel.
¶10There is no doubt in my mind that the Legislature intended that the accused at that time should be advised of his constitutional right to have counsel. That is the reason why the statute requires that the magistrate shall inquire of him as to whether he desired counsel. If he answers in the affirmative, the court “shall allow him a reasonable opportunity for procuring it.” Not only must the magistrate inquire of the defendant whether he desires the aid of counsel, but he must also allow a reasonable opportunity for procuring it. The mandate of the statute as to the inquiry and as to reasonable opportunity are alike imperative.
¶11A compliance with the requirements of the statute in both particulars is absolutely essential to the jurisdiction of the examining court to proceed, because the mandate of the statute is that “the magistrate before commencing the examination shall,” etc.
¶12To deprive persons accused of crime of the right vouchsafed by the above statute is but to “cut the heart out” of the constitutional provision itself which commands that he “shall enjoy that right.” People v. Napthaly, 105 Cal. 641.
¶13The admission of the above testimony was, therefore, error for which the judgment should be reversed and the cause remanded for new trial.