¶1 concurring. I concur in the opinion, but I would proceed further as to assignment of error number one. If a court should appoint one attorney for co-defendants, the determination that co-defendants have intelligently chosen to so proceed should be an affirmative determination by the court, absent the filing of a motion. To require a motion would be a dangerous presumption that defendants are so well versed in the law as to be aware of the potential pitfalls or that the defendants have been advised of such peril by the appointed counsel.
“Efficient judicial administration and important rights of defendants are served when [a] trial judge makes [an] affirmative determination that co-defendants have intelligently chosen to be represented by [the] same attorney and that their decision was not governed by poverty and lack of information on [the] availability of assigned counsel.” Paragraph 3 of the syllabus, Campbell v. United States (D. C. Cir.), 352 F. 2d 359.
¶2 This Campbell case which was decided subsequent to Glasser v. United States, 315 U. S. 60, and which cites Glasser as authority, gives reasons and an explanation for an “affirmative determination” by the trial judge. At page 360, the Court said:
“ … # An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. …”
¶3 We in the judiciary constantly speak of fairness, substantial justice, dignity of man, etc. We should practice *88 what we preach. We, more than anyone, shonld he aware of the need of counsel by one charged with a crime.
“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawryer to assist him.” Gideon v. Wainwright, 372 U. S. 335, at 344.
¶4 It goes without saying that to stand equal, the defendant must be represented by competent counsel, unfettered in the execution of his representation. It is the judge’s duty to selfishly protect these rights of the indigent defendant. A failure to do so, affirmatively, must be prejudicial error because such failure could hinder the accused in the presentation of his defense in such a way that favorable evidence may never be placed in the record and thus remain unknown to the jury and a reviewing court. There is the further danger that such failure may prevent the accused from effectively challenging or explaining the state’s evidence and it could therefore appear from the record that the accused is guilty when, in fact, he may have had a valid defense.
¶5 In summation, I would sustain defendant’s first assignment of error by holding that the trial court should have affirmatively, without motion and on the record, ascertained that the co-defendants, represented by one court appointed counsel, would each receive effective assistance of counsel at trial, and that failure so to do, regardless of what later transpired, was error, and that the judgment should be vacated and the cause remanded for a new trial.