¶1dissenting: In my opinion the decision of the court overlooks the fact that this is a civil proceeding wherein the petitioner is required to prove the essential allegations of his motion to the satisfaction of the trial court only by a preponderance of the evidence. The trial court after considering all of the evidence presented by the record found in favor of the petitioner.
¶2It has been held a general finding by a trial court raises a presumption that it found all facts necessary to sustain and support the judgment. (Andrews v. Hand, 190 Kan. 109, 372 P. 2d 559; Dryden *489v. Rogers, 181 Kan. 154, 309 P. 2d 409; and Davis v. Davis, 162 Kan. 701, 178 P. 2d 1015.)
¶3The first issue suggested by the petitioner’s motion to vacate the sentence was that the plea of guilty entered by him in the criminal case was not voluntarily made and free from coercion and misrepresentation.
¶4The petitioner contended throughout that he was not guilty of the crime with which he was charged. Evidence both by the petitioner and his counsel at the criminal proceeding was sufficient to establish that the plea of guilty was coerced. Even if the petitioner’s proof with respect to promises made concerning use of the habitual criminal act failed, the evidence was sufficient to indicate that threats were made concerning the prosecution of the petitioner’s wife unless he entered a plea of guilty. This the trial court was entitled to believe constituted coercion at a time when the petitioner was not represented by counsel in the criminal proceeding. Counsel for the petitioner in the criminal proceeding acknowledged there was some discussion concerning the petitioner’s wife. All of the evidence on this point was demeanor evidence and this is a significant factor in adjudging credibility. (Townsend v. Sain, 372 U. S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 [1963].) The court was well within its powers to find that such testimony of counsel corroborated the testimony of the petitioner.
¶5The evidence is undisputed that the petitioner prior to his arraignment and plea in the criminal proceeding was- indigent and incarcerated for a period of approximately twelve days, facing a possible life sentence. During this time numerous negotiations with the county attorney’s office and its agents were held with the petitioner concerning the crimes with which he was charged and the punishment. All of these negotiations were without the aid and benefit of counsel for the petitioner. Furthermore, it is undisputed that the petitioner received the assistance of counsel for only a very short period of time before his arraignment, plea and sentencing.
¶6Recent federal decisions, cited and discussed in the court’s opinion, indicate that the critical stage of a proceeding at which an indigent defendant is entitled to the aid and assistance of counsel is that stage of the proceedings at which the accused could be prejudiced.
¶7No hard and fast rule can be stated which will apply to all cases. Ordinarily, under Kansas law, the preliminary hearing is not a critical stage of the criminal proceeding. But an appraisal of the *490totality of the undisputed facts in this case, as established at the hearing on the motion to vacate, indicates a critical stage of the proceeding with respect to the petitioner occurred prior to the preliminary hearing. On the facts a shroud of suspicion is cast upon whether or not the concept of fundamental fairness has been contravened and whether the petitioner has been denied his constitutional rights.
¶8On this point the trial court found and held in favor of the petitioner, and in my opinion correctly held that “The arraignment and preliminary hearing in the magistrate court” was a critical stage of the criminal proceeding in this case, and that an attorney should have been appointed for the petitioner prior thereto.
¶9Had the petitioner not been an indigent person he certainly would have had the aid and assistance of counsel and would have been advised on the facts and the law prior to the negotiations of barter conducted by the county attorney’s office while the petitioner was incarcerated. The vice in the practice which permits the prosecution to bargain with the indigent accused is that it requires the accused to barter with the issue of his guilt or innocence. That is the vital issue in any criminal proceeding.
¶10In Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), Wigmore was quoted as follows:
“ ‘[A]nt/ system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer, — that is, to a confession of guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.’ 8 Wigmore, Evidence (Sd ed. 1940), 809. (Emphasis in original.)” (P--)
¶11Throughout the record in the instant proceeding, it is apparent counsel for the petitioner in the criminal proceeding was not given a sufficient opportunity to fulfill his duty to his client. This is indicated by the following excerpts from the testimony of Mr. Loftus:
“Essentially, I was just the man to go through the formalities to dispense with the deal.”
*491“We did not discuss his offense at all, because he was talking then about pleading guilty.”
“It was my understanding that he wanted to plead guilty and that all the preliminary negotiations had been made and that this was just the means to the end which was his plea of guilty.”
“I was just brought in at the last minute after the deal was made.”
“I did not have a chance to talk to the defendant so I could offer any argument to the Court in way of mitigation of the sentence. I did not know anything about the defendant’s background to tell the Court; for example, that two of these sentences were when he was very young and that type of thing.”
“The conversations that were had that particular day of my appointment consisted more in the punishment provision of the statute involved in forgery in the second degree as to which particular section of the habitual criminal act was going to be applied.”
“I remember feeling that this was all very rapid.”
¶12The foregoing is not to say that counsel who did represent the petitioner at the criminal proceeding was incompetent. It does say the petitioner did not receive the aid and assistance of counsel to which he was entitled in the criminal proceeding prior to the arraignment and his entry of a plea of guilty.
¶13The Kansas Supreme Court has held that a plea of guilty, in order to be valid, must be freely, knowingly and understandingly made. Otherwise it is a violation of the constitutional guarantee of due process and the judgment is void. (Miller v. Hudspeth, 164 Kan. 688, 705, 192 P. 2d 147, and authorities cited therein.) A coerced plea of guilty is not voluntary or freely made.
¶14In 14 Am. Jur., Criminal Law, § 270, p. 951, it is said:
“A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance. Accordingly, it will not bind the defendant where it is entered through intimidation, however slight; and a judgment is not properly entered on it where the court does not satisfy itself of the voluntary character of the plea. . . .”
¶15The effective assistance of counsel, in my opinion, requires that counsel for an indigent defendant in a criminal case have at least sufficient time to consult and counsel with the accused individually and in private for a sufficient period of time to adequately apprise him of his constitutional rights.
¶16Court-appointed counsel must perform certain functions as reported in Miller v. Hudspeth, supra:
“. . . it is the duty of a defendant’s counsel to determine what crime the facts, in his opinion, establish and to advise his client accordingly. That is one of the definite purposes of having counsel. A layman is not presumed to know *492the legal technicalities involved in a charge of murder or manslaughter in the various degrees. . . .” (pp. 705,706.)
¶17The court there further stated that one of the most important reasons for requiring counsel is to protect the defendant from pleading guilty to a charge which the evidence does not establish.
¶18In my opinion the lower court was correct in its order discharging the petitioner from imprisonment when it concluded and held “The defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court on June 28,1963.”
¶19It is respectfully submitted the judgment of the lower court should be affirmed.
¶20dissenting: I am not concerned over the failure to have counsel appointed for petitioner at the time of his preliminary examination. This court has consistently held that the preliminary hearing is not a critical stage in the trial process (see cases cited in the courts majority opinion) and I see nothing in the circumstances of this case which would warrant any deviation from our previous holdings.
¶21Nor do I discern any infringement upon the petitioner’s basic rights simply because he negotiated with the county attorney without benefit of counsel. This is a common practice, frequently employed by habitual offenders. No reason is suggested why this conviction should be set aside merely because the accused may have jockeyed with the prosecutor for a favorable position.
¶22So far as the record discloses, the petitioner was deprived of no substantial right because of his dealings with the prosecutor’s staff. This is not a case where it appears that the petitioner was prejudiced or that some fundamental or constitutionally guaranteed right was denied him because of such negotiations. Had it developed that, after petitioner was refused counsel, a confession or any incriminating statement was obtained through the negotiation process and had an attempt then been made to use that confession or statement against petitioner, a different problem might be posed.
¶23In my judgment, a more serious question is presented in connection with the second finding of the trial court. This finding is as follows:
“The defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court of June 28, 1963.”
¶24*493Under our long-established and well-defined rule, we are not at liberty to disregard this finding, if there is any substantial, competent evidence on which it can be sustained. (Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
¶25From the evidence quoted by Justice Schroeder in his dissenting opinion, it appears evident that the petitioner s legal representation in district court at the time of his arraignment and plea of guilty was casual at best. This is no reflection upon the professional ability or integrity of Mr. Loftus, who was appointed to represent the petitioner, for he was provided the scantiest opportunity to advise with his client.
¶26The record discloses that counsel was not appointed for the petitioner until he and two other prisoners were brought into court for their arraignment, and that Mr. Loftus was thereupon appointed to represent all three men. The only consultation had between Loftus and the petitioner took place in the presence of the other two prisoners while all three were seated on a bench in the courtroom. The petitioner testified that he spoke with Loftus for approximately twenty to thirty seconds at four different times, while Loftus himself testified that this “was all very rapid.” As shown by the record, Mr. Loftus also testified as follows:
“We did not discuss his offense at all, because he was talking then about pleading guilty. When I found out that he had a previous conviction for the same particular crime, it was my estimation then that he knew pretty well what his constitutional rights were concerning this particular crime.”
¶27I cannot believe that this is the sort of representation by counsel contemplated by G. S. 1961 Supp., 62-1304 (now K. S. A. 62-1304). A procedure which precludes more than a token representation of an accused by his appointed counsel clearly fails to measure up to the purpose and requirements of our statute as well as to the constitutional requirements of due process.
¶28No attorney, appointed at the last minute to represent a defendant about to be arraigned and who has no opportunity to consult with his client fully and freely in private, can satisfactorily advise and counsel with his client, no matter how competent a lawyer he may be. A prisoner, whose counsel has been appointed only to take his client through the formalities and to give effect to a deal already made with the county attorney, can hardly be said to have been provided counsel to inform him of and to protect his constitutional rights.
¶29*494However, I do not approve o£ or agree with the action of the trial court in ordering the petitioner discharged from imprisonment. The error which I believe inhered in the proceedings leading up to and continuing through the arraignment and sentencing of the petitioner cannot be said to justify his complete exoneration, or his absolute release. In all justice, such error should require only that the sentence be set aside and the petitioner granted a trial, not that the petitioner escape trial entirely.
¶30In Dunfee v. Hudspeth, 162 Kan. 524, 178 P. 2d 1009, this court held:
“In habeas corpus proceedings by an inmate of the state penitentiary, where the record discloses a plea of guilty and sentence under circumstances not in accord with due process of law, the plea and sentence are set aside and the petitioner is remanded to the trial court for further proceedings in harmony with law.” (Syl. ¶ 2.) <-
¶31In my view, a similar disposition should be made of this appeal.
¶32K. S. A. 60-1507 (b) provides in part:
“. . . If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or, grant a new trial or correct the sentence as may appear appropriate.”
¶33To me, it seems wholly inappropriate for the trial court, after vacating the sentence, to have ordered the petitioner discharged. In my judgment, the appropriate action would have been to grant him a new trial.
¶34In my opinion, the record contains substantial, competent evidence to support the trial court’s second finding. For this reason, I respectfully dissent from the majority opinion and I would remand this case with directions that further proceedings be had, in harmony with die views herein expressed and as provided by law.