Beck v. Winters Petition for a Writ of Certiorari to the United States Court of Appeals for the Eight Circuit
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January 1, 1969

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Brief Collection, LDF Court Filings. Beck v. Winters Petition for a Writ of Certiorari to the United States Court of Appeals for the Eight Circuit, 1969. fafea218-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8f958945-c835-4db2-9921-549adc4be7bd/beck-v-winters-petition-for-a-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-eight-circuit. Accessed July 11, 2025.
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IN THE SUPREME COURT OF THE UNITED STATES N o.________ OCTOBER TERM, 1968 Captain H enry Beck, Superintendent of the Pulaski County Penal Farm; and Clint Cavin, Surety_______________ Petitioners v. R obert W in teb s------------------------------------ Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT PETITION FOR CERTIORARI R ichakd B. Adkisson Prosecuting Attorney for Pulaski County J oe P ttbcell Attorney General of Arkansas Don L angston Deputy Attorney General Justice Building Little Rock, Arkansas 72201 Attorneys for Petitioners P AR AG O N P R IN T IN G C O ., L IT T L E RO CK I N D E X Page Opinions Below _____________________________________ 2 Jurisdiction ______________________________________________ 2 Question Presented ____________________ ___________________ 2 Constitutional Provisions and Statutes _____________________ 3 Statement ----------------------------------------------------------------------- 5 Argument ----------------------------------------------------------------------- 7 Appendix A _____________________________________________ 13 Appendix B _____________________________________________ 31 Appendix C __________________________ „__________________ 42 Appendix D ----------------- 43 Appendix E —--------------------------------- 44 UNITED STATES CONSTITUTION Fourteenth Amendment §1 _!______ ,__________ ____________ 2-3 Sixth Amendment § 1 _____ ___________ _______ .__________ 2-3 ARKANSAS CONSTITUTION Arkansas Constitution, Art. 2, § 10 ___ _________ _____________ 3 STATUTES 18 U.S.C.A. § 1(3) _________________________________________ 10 23 U.S.C.A. § 2341 ________________________________________ 7 28 U.S.C.A. § 1254 ________________________________________ 2 Ark. Stat. Ann. § 41-1401__________________________________ 10 Ark. Stat. Ann. § 43-1203 _________________ ___________ 2, 4, 7, 9 Ark. Stat. Ann. § 46-502 __________________________________ 3.5 INDEX (Continued) Page ORDINANCE Little Rock City Ordinance § 25-121 ________________________ 5 CASE CITATIONS Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534_______2, 7, 8, 9, 11 City of New Orleans v. Cook, 249 La. 820, 191 So. 2d 634_______ 11 City of Toledo v. Frazier, 10 Ohio App. 2d 51, 226 N.E. 2d 777...-11-12 Fish v. State, 159 So. 2d 866 (Fla.) __________________________ 11 Gideon v. Wainwright, 372 U.S. 335 (1963) __________._____7, 8,10 Harvey v. Mississippi, 340 F. 2d 263 ________________________ 8 Jones v. Cunningham, 371 U.S. 236 (1963) ---------------------------- 6 McDonald v. Moore, 353 F. 2d 106 ----------------------- ---------------- 8 State v. Sherron, 368 N.C. 694, 151 S.E. 2d 599______________ 11, 12 Watkins v. Morris, 179 So. 2d 348 (Fla.) _____________..._____ ___ 11 Winters v. Beck, 239 Ark. 1151, 397 S.W. 2d 364__________ 2, 5, 7, 9 Winters v. Beck, 385 U.S. 907 __________________________ 5,7,8 Winters v. Beck, 281 F. Supp. 793 --------------------------------------- 2 IN THE SUPREME COURT OF THE UNITED STATES No_________ OCTOBER TERM, 1968 Captain H enry Beck, Superintendent of the Pulaski County Penal Farm; and Clint Cavin, Surety___ _— ...— Petitioners v. R obert W inters .. __Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT PETITION FOR CERTIORARI Petitioners petition this court for a Writ of Cer tiorari to the United States Court of Appeals for the 8th Circuit to review a judgment entered in this case on February 25, 1969, wherein the Circuit Court of Appeals for the 8th Circuit affirmed an order of the United States District Court for the Eastern District of Arkansas, Western Division, granting petitioners’ petition for a Writ of Habeas Corpus. 2 OPINIONS BELOW The opinion and order of the United States District Court for the Eastern District of Arkansas, Western Division, is reported in 281 F. Supp. 793. The opinion and judgment of the United States Court of Appeals for the 8th Circuit are not yet reported. A copy of the dis trict court opinion is set forth in Appendix “ A” and a copy of the opinion of the United States Circuit Court of Appeals for the 8th Circuit is set forth in Appendix “ B ” to this Petition for Certiorari. JUBISDICTION The judgment sought to be reviewed in this case was entered on February 25, 1969. Jurisdiction of the United States Supreme Court to review the judgment of the United States Court of Appeals for the 8th Circuit in this case is by petition for Writ of Certiorari pursuant to 28 U.S.C.A. §1254. QUESTION PRESENTED The 8th Circuit Court of Appeals erred in holding that the petitioner was denied constitutional rights to counsel. In other words, the 8th Circuit Court of Appeals has held that the 6th and 14th Amendments to the United States Constitution requiring Arkansas to appoint counsel in this misdemeanor case and in effect has held Ark. Stat. Ann. §43-1203 and the Arkansas practice thereunder pur suant to the cases of Winters v. Beck, 239 Ark. 1151, 397 S.W. 2d 364 and Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534 unconstitutional. 3 CONSTITUTIONAL PBOVISIONS AND STATUTE The United States Constitutional Provisions involved herein are amendments 6 and 14 §1, of the United States Constitution. Amendment 6 can be found in U.S.C.A., C o n s t it u t io n , Amendment 6 to 14, page 4. Amendment 14 §1 can be found in U.S.C.A., C o n st it u t io n , Amendment 14 to end at page 4. Amendment 6 provides as follows: “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the ac cusation ; to be confronted with the witnesses against Mm; to have compulsory process for obtain ing Witnesses in his favor, and to have the Assist ance of Counsel for his defense.” Amendment 14 §1 provides as follows: “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where in they reside. No State shall make or enforce any law which shall abridge the privileges or im munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro tection of the laws.” The Arkansas Constitutional Provision involved herein is Article 2 §10 and can be found in Ark. Stat. Ann., C o n st it u t io n , Yol. 1 p. 33. It provides as follows: “ In all criminal prosecution the accused shall enjoy the right to a speedy and public trial by im- 4 partial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial dis trict in which the indictment is found upon the ap plication of the accused, in such manner as now is, or may be, prescribed by law; and to be in formed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to be heard by himself and his counsel.” The statute involved herein is Ark. St at. Ann. §43-1203 and can be found in Vol. 4A, C r im in a l P rocedure, page 81. It provides as follows: “ If any person about to be arraigned upon an indictment for a felony, be without counsel to conduct his defense, and shall be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two [2], who shall have free access to the prisoner at all reason able hours.” 0 STATEMENT On May 13, 1965, Robert Winters, was tried and con victed in the Little Rock Municipal Court of immorality, a misdemeanor defined by city ordinance. It is Number 25-121 and is set out in Appendix “ C” . He was sentenced/ to 30 days in jail and fined $254.00, which included costs. Winters was delivered to the Superintendent of the Pulaski County Penal Farm to serve his sentence as provided in Ark. Stat. Ann. §46-502, et seq. Winters was not repre sented by counsel in the Municipal Court. He did not ask for the assistance of counsel, nor did the trial judge inform him of any right to counsel. Although he would have been! entitled to trial de novo in the Pulaski County Circuit Ciurt, no appeal was perfected. While serving his sentence, he obtained counsel and filed a Petition for a Writ of Habeas Corpus before the Pulaski County Cir cuit Court, where it was denied. The Circuit Court rul ing y as sustained on appeal by the Arkansas Supreme Court. The opinion of the Supreme Court appears in 239 Ark. 1151, 397 S.W. 2d 364. Certiorari was sought to the United States Supreme Court, and denied. 385 U.S. 907 (Mr. Justice Stewart dissenting). While the appeal was pending to the Arkansas Su preme Court Winters was admitted to bail and still re mains at freedom at $100.00 bond. Following the denial of Certiorari by the United States Supreme Court which exhausted State remedies, Winters filed a Petition for a Writ of Habeas Corpus on November 8, 1966, in the United States District Court for the Eastern District of Arkansas, alleging, among other points, that he had been tried and convicted with out benefit of counsel and, therefore, in violation of his 6 Constitutional Bights. Initially the District Court dis missed the petition because the petitioner being at liberty on bond was not “ in custody” as is required by 23 U.S.C.A. §2341. However, a certificate of probable cause was obtained in the United States Court of Appeals for the 8th Circuit, which court on appeal remanded the cause to the District Court for rehearing on the merits in con formity with the teachings of the Supreme Court in Jones v. Cunningham, 371 U.S. 236 (1963) on “ rehearing” the District Court ruled that the petitioner was not “ in custody” and, therefore, the District Court had no author ity, but that the court acting in conformance with the remand order of the court of appeals would decide the merits of the case. In deciding the case on its merits the court considered three points and ruled for petitioner on one — the denial of counsel. In short, Judge Young held a hearing and in his opinion found that “ the inter action of the ‘ dollar-a-day ’ statute of Arkansas with a $254.00 fine plus a thirty day jail sentence constituted a ‘serious offense’, and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel, rendered the judgment of conviction and sentence constitutionally invalid.” We filed a notice of appeal in the District Court which court issued a certificate of probable cause and an appeal was taken to the 8th Circuit Court of Appeals. The Circuit Court affirmed the opinion and order of the Dis trict Court granting Winters’ Petition for Habeas Corpus ancl petitioners herein have requested and were granted a stay of the mandate in this case until May 13, 1969. The purpose of the stay of mandate being to allow us time to petition the United States Supreme Court for a Writ of Certiorari to the United States Circuit Court of Appeals for the 8th Circuit, 7 ARGUMENT The reasons why we feel that certiorari should be granted in this case are because the 8th Circuit Court of Appeals has decided an important state question in a way in conflict with state law, has decided an important question of federal law which has not been, but should be, settled by this court and has decided a federal ques tion in a way in conflict with applicable decisions of this court. ArJc. Stat. Ann. §43-1203 provides for the appoint ment of counsel for indigents in felony cases. The Ar kansas Supreme Court in Winters v. Beck, 239 Ark. 1151, 397 S.W. 2d 364, and Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534, has held that this statute only applies in felony cases and has refused to constitutionally require appointment of counsel in misdemeanor cases. The de cision of the 8th Circuit Court of Appeals has held that an indigent misdemeanor defendant is constitutionally entitled to the appointment of counsel and therefore is in conflict with applicable state law. In Winters v. Beck, 385 U.S. 907, the United States Supreme Court refused to grant certiorari on the same question presented herein. The United States Supreme Court, therefore, has not yet decided that an indigent misdemeanor defendant is constitutionally entitled to ap pointment of counsel. The 8th Circuit Court of Appeals has held that an indigent misdemeanor defendant is con stitutionally entitled to counsel and this is an important question of federal law which has not been, but should be, settled by this court. This court in Gideon v. Wainwright, 372 U.S. 335 (1963), held that an indigent felony defendant was con- 8 stitutionally entitled to the appointment of counsel but expressly refused to extend that right to indigent mis demeanor defendants. The 8th Circuit Court of Appeals has held that an indigent misdemeanor defendant is con stitutionally entitled to the appointment of counsel. Therefore, the 8th Circuit Court of Appeals has decided a federal question in a way in conflict with an applicable decision of this court, namely, Gideon v. Wainwright, supra. We think the Supreme Court of the United States should grant this Petition for Certiorari in this cause and we can think of no better reason than that given by Mr. Justice Stewart in his dissent in Winters v. Beck, 385 U.S. 907 as follows: “ This decision of the Supreme Court of Ar kansas is in conflict with decisions of the United States Court of Appeals for the Fifth Circuit, which has held that indigent defendants have a constitu tional right to counsel in misdemeanor cases. McDonald v. Moore, 353 F. 2d 106; Harvey v. Mis sissippi, 340 F. 2d 263. This conflict must be re solved, unless the Constitution of the United States is going to mean one thing in Arkansas and some thing else in Mississippi.” In other words, if Arkansas has to appoint counsel for misdemeants all the other states should also be subject to this requirement. With these preliminary statements in mind as to why we think this Court should grant this petition for Writ of Certiorari we proceed briefly into our argument on the merits concerning the rights to counsel. It is undisputed that Winters was neither afforded counsel or advised of any right to have counsel by the 9 Municipal Court. The reason being that Winters was not entitled to be furnished free counsel by the ruling of any court which is in the line of authority from the Mu nicipal Court to the United States Supreme Court. When the issue was presented to the Arkansas Supreme Court it ruled against Winters. Winters v. Beck, 239 Ark. 1151, 397 S.W. 2d 364 (1966). When the issue was pre sented to the United States Supreme Court, certiorari was denied, 385 U.S. 907. Traditionally (over 100 years) the State of Arkansas has provided free counsel for indigent defendants in felony cases, Ark. Stat. Ann. §43-1203, therefore, the Ar kansas Supreme Court when once again faced with the issue of appointed counsel in misdemeanor cases explained in Cableton v. State, 243 Ark. 351, 358, 420 S.W. 2d 534 (1967) : “ The practical impossibility of implementing a system such as appellant urges is obvious when we consider that there are more justices of the peace in Arkansas than there are resident practic ing lawyers and that there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administra tion of justice in Arkansas and impose an intoler able burden upon the legal profession.” The Arkansas Supreme Court did not believe that the rule should be changed except by the Arkansas Legis lature or the United States Supreme Court. It said: “ We choose not to anticipate that the Supreme Court of the United States will extend the rule of the Wainwright case to misdemeanor cases. We rather choose to hold that the public policy of this state on the right to appoint counsel is expressed in our statutory law. While the statute requiring appointment of counsel in felony cases was adopted 10 long before the decision in Gideon v. Wainwright, supra, we take judicial notice that the General Assembly of our state has met in regular session twice subsequently. We cannot assume that, in failing to extend our law to require appointment of counsel in cases other than felonies, they were ignorant of that decision. Any change in the law of Arkansas, after certiorari was denied in the Winters case, should either come through legisla tive enactment or by an express decision of the United States Supreme Court.” The District and Circuit Courts state that there are some cases in which there is no requirement for appoint ing counsel, and other cases where appointed counsel is a necessity, and the primary concern of the Courts was in determining where to draw the line. The Courts chose the rule which prevails in the Federal Courts as provided in 18 USCA §1 (3), i.e., counsel need not be provided in petty offenses which are defined as those where the pen alty does not exceed imprisonment of six months or a fine of no more than $500.00 or both. Although the city ordinance in question establishes a maximum punishment of thirty days imprisonment and a fine of $250.00, the District and Circuit Courts ruled that the charge consti tuted more than a petty offense because the fine, if not paid, must be worked out at $1.00 per day. By the Courts’ reasoning, there are few, if any, Arkansas statutes which provide for “ petty offense.” For example, dis turbing the peace carries a maximum punishment of $300.00 and six months in jail. Ark. Stat. Ann. §41-1401. The decision on where to draw the line is one which requires the balancing of interest and, therefore, is one which traditionally in the American system of govern ment belongs to the Legislatures, not to the courts. The Arkansas Legislature, recognizing its duty to provide 11 counsel for indigent persons enacted such legislation al most one hundred years ago. Certainly the Federal Courts should exercise supervision of the States to insure that individual citizens are not denied fundamental con stitutional rights. However, the Federal courts should not undertake to decide in each particular case whether or not free counsel should have been afforded an accused. The decisions have recognized the impossibility of furnish ing counsel to each and every person accused of a crime. Therefore, the Courts should allow a reasonable latitude to the Legislatures in solving this problem. In advancing this argument we, nor our Court, do not stand alone in taking the position that indigent mis demeanor defendants are not constitutionally entitled to counsel. This is pointed out by our Supreme Court in the Cableton decision, supra: “ Our decision in the Winters case does not stand alone. It has been followed or cited with approval in other jurisdictions. See, e.g., City of Toledo v. Frasier, 10 Ohio App. 2d 51, 226 N.E. 2d 777; State v. Sherron, 268 N.C. 694, 151 S.E. 2d 599; City of New Orleans v. Cook, 249 La. 820 191 So. 2d 634. “ In Florida, the arena in which at least five of the ‘constitutional right to counsel’ cases have been originally contested, the Supreme Court has also held that the Wamwright case did not apply to misdemeanors. They based their holding that an indigent defendant accused of a misdemeanor was not entitled to appointed counsel on the action of their legislature providing for a public defender for indigents in non-capital felony cases. This they said, constituted a declaration of the state’s public policy. Fisk v. State, 159 So. 2d 866 (Fla.) • Watkins v. Morris, 179 So. 2d 348 (Fla). The 12 Ohio court has also found a declaration of public policy in its statutes. City of Toledo v. Frasier, supra. It is suggested by the Supreme Court of North Carolina that the United States Supreme Court has not put a responsibility upon a state in this field any greater than that imposed by its own statutes. State v. Sherron, 268 N.C. 694, 151 S. E. 2d 599.” We submit that upon the review of the judgment of the 8th Circuit Court of Appeals that the judgment be re versed and the cause remanded to the District Court with directions to dismiss Winters’ petition for Writ of habeas corpus because he was not constitutionally entitled to counsel in this case. Respectfully submitted, R ichabd B. Adkisson Prosecuting Attorney for Pulaski County J oe P urcell Attorney General of Arkansas D on L angston Deputy Attorney General Justice Building Little Rock, Arkansas 72201 Attorneys for Petitioners 13 APPENDIX A Filed March 5, 1968, Louise A. Rohan, Acting Clerk IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION R obert W in t e r s .. Plaintiff v. No. LR-66-C-227 Ca pt a in H en r y B e c k , Superintendent of the Pulaski County Penal Farm ; and Cl in t Ga v in , Surety -------- -------_____......_____ Defendants MEMORANDUM OPINION On May 13, 1965 the petitioner, Robert Winters, was convicted in the Little Rock Municipal Court of immoral ity, a misdemeanor under the provisions of a City Ordi nance. His punishment was fixed at 30 days in jail and a fine of $254.00, including costs. Being an indigent and unable to pay the fine, he was sentenced to the Pulaski County Penal Farm for a total of 284 days as provided in Ark. Stats. Ann 19 §2416 (1956 Repl. Vol.).’ At his trial petitioner was not represented by counsel. He did not ask for the assistance of counsel, nor was he informed by the trial judge of any right to counsel. NOTE 1: “19-2416. Persons in jail for violation of city or town ordinance may be required to work on streets and improve ment— Prisoners confined in the county jail or citv Drisnn hv sentence of the Mayor or Police Court, for a violation of a * o? town by-law, or ordinance, or regulation, may, by ordinance*^ be required to work out the amount of all tines penalties fnrfoH,, b and costs, at the rate of one dollar ($1.00) p e /d a y on t ie I reels Mar Under the C°ntro1 °f the Ci^ Council.^ (Acl 14 Petitioner did not exercise Ms right by appeal to a trial de novo in the Pulaski County Circuit Court for the reason, it is alleged in the pending petition, that “ not having the advice of counsel, petitioner was not aware of further remedies provided by the Law of Arkansas.” After his time for appeal had expired, and having served a portion of his sentence, he secured counsel, who filed a petition for a writ of habeas corpus, which was denied in both the Little Pock Municipal Court and the Pulaski Circuit Court. He appealed to the Supreme Court of Arkansas, alleging that Ms constitutional rights were violated because no lawyer had been appointed to defend him on the misdemeanor charge in the Municipal Court. The Supreme Court denied his petition, saying that Winters had not indicated that he wanted an attorney, and: “ We have held that no duty is imposed upon the trial court to appoint counsel for a defendant charged with a misdemeanor.” 239 Ark. 1151, 397 S.W. 2d 364. The Supreme Court of the United States denied certiorari, 385 U.S. 907, Justices Black and Stewart dis senting. Prior to its decision, the Arkansas Supreme Court had admitted petitioner to bail upon a nominal bond of $100.00. He still remains on that bond. After relief was denied by the United States Supreme Court, Winters filed a petition for writ of habeas corpus in this Court, alleging that his sentence was unconstitu tional and void for these reasons: 1. Petitioner was tried and convicted without ben efit of counsel and without being advised of his right to counsel; 15 2. The penalties assessed against him by the Municipal Court of Little Rock deprived him of the equal protection of the laws in that the substitution of 254 days in jail as punishment for his failure to pay his fine and court costs of $254.00 as provided by the Arkansas Statute arbitrarily imposes imprisonment for no other reason than indigency; 3. The ordinance pursuant to which he was con victed violates the due process clause of the Fourteenth Amendment in that it is vague, ambiguous, and uncertain. On February 14, 1967 the Court dismissed the petition on the ground that the petitioner, being at liberty on bond, was not under such restraint as was necessary to permit him to file a petition for a writ of habeas corpus. Row land v. State of Arkansas, 179 F. 2d 709 (8 Cir. 1950). On March 31,1967 the United States Court of Appeals for the Eighth Circuit remanded the cause to this Court “ for a rehearing on the merits in conformity with the teaching of the Supreme Court of the United States in Jones v. Cunningham, 371 U.S. 236. ” Frankly, it had not occurred to this Court that Jones v. Cunningham was applicable. In that case is was said: “ A United States District Court has jurisdic tion under 28 U.S.C. §2241 to grant a writ of habeas corpus ‘to a prisoner . . . in custody in violation of the Constitution . . . of the United States.’ ” 371 U.S. 236. The question there was whether a state prisoner who had been placed on parole was “ in custody” within the mean- 16 ing of that section. There, as stated in the opinion, p. 242, petitioner was: “ confined by the parole order to a particular com munity, house, and job at the sufferance of his parole officer. He cannot drive a car without permission. He must periodically report to his parole officer, permit the officer to visit his home and job at any time, and follow the officer’s ad vice. He is admonished to keep good company and good hours, work regularly, keep away from undesirable places, and live a clean, honest, and temperate life.” The opinion went on to say, p. 243: “ While petitioner’s parole releases him from im mediate physical imprisonment, it imposes condi tions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute; ’ ’ Petitioner is under no comparable restrictions under his bail here. There is no limitation upon his travel, his employment, his associates, or anything else. He may do as he pleases. He is only required to render himself amenable to the order and process of the court. This is no more restraint than if without bond or bail a sum mons had been issued directing him to appear before the court and be amenable to its orders. If the Mandate of the Court of Appeals means that we should consider whether or not the petitioner is in custody as taught in Jones v. Cunningham, we would hold that he is not and that the petitions should be dismissed as being prematurely brought. However, the Mandate is subject to the construction that the Court of Appeals has found that petitioner is now in such “ custody” and 17 that this Court should hear the petition on its merits. We proceed to do so. T h e attack ok t h e o rdinance . Ordinance No. 25-121 of the City of Little Rock reads as follows: “ It is hereby declared to be a misdemeanor for any person to participate in any public place in any obscene or lascivious conduct, or to engage in any conduct calculated or inclined to promote or encourage immorality, or to invite or entice any person or persons upon any street, alley, road or public place, park or square in Little Rock, to ac company, go with or follow him or her to any place for immoral purposes, and it shall be un lawful for any person to invite, entice or address any person from any door, window, porch or portico of any house or building, to enter any house or to go with, accompany or follow him or her to any place whatever for immoral purposes. “ The term ‘public place’ is defined to mean any place in which the public as a class is invited, allowed or permitted to enter, and includes the public streets, alleys, sidewalks and thoroughfares, as well as theaters, restaurants, hotels, as well as other places. The term ‘public place’ is to be interpreted liberally. _ “ Any person found guilty of violating the pro visions of this section shall, upon conviction, be fined in any sum not less than ten dollars, nor more than two hundred and fifty dollars or imprisoned for not less than five days nor more than thirty days, or both fined and imprisoned.” According to the evidence at the trial, petitioner and Ms woman companion were found in a state of undress on the “ bed” in the women’s rest room for the use of the 18 public in a Little Eock hotel. It would seem that this is “ obscene or lascivious conduct” in a “ public place” by any standard. We do not think that the ordinance is void on its face, nor that its application here violated constitutional principles. S h o u l d c o u n sel be a ppo in ted in all m isd em ea n o r CASES? Since Gideon v. Wainwright, 372 U.S. 335 (1963), sev eral courts have considered the problem, of whether or not Gideon requires that counsel be appointed for defendants in misdemeanor cases. Two of these cases are from the Fifth Circuit — McDonald v. Moore, 353 F. 2d 106 (1965); and Harvey v. State of Mississippi, 340 F. 2d 263 — and these cases are cited by Mr. Justice Stewart in his dissent from the denial of certiorari in this case, Winters v. Beck, supra. In Harvey v. State of Mississippi, after very informal proceedings before a justice of the peace the defendant entered a plea of guilty, with the understanding that he would receive a fine. Later the judge gave him a sentence imposing a fine of $500 and a 90-day jail sentence. The court carefully avoided deciding whether or not the rule in Gideon had been extended to misdemeanor charges in state tribunals, but apparently because of the jail sentence, and relying on the reasoning in Evans v. Rives, 75 U.S. App. D.C. 242, 126 F. 2d 633 (1942), sustained petitioner’s application for a writ of habeas corpus and voided his conviction. In McDonald v. Moore, supra, the defendant had pleaded guilty in Florida to illegal sale of whiskey, which is a misdemeanor in that state. A sentence of 6-months 19 in jail or a fine of $250 was imposed. She later at tempted to withdraw her plea of guilty on the ground that she was without counsel at the time of arraignment, but this was denied by the court. In discussing the problem the court said that now, under Gideon, states must provide counsel for indigent defendants in criminal cases to the same extent as the United States under like circumstances must do in Federal eases. The court went on to say: ‘ ‘ It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more lawyers than could be made available.” The court in McDonald said that in Harvey v. State, supra, the Fifth Circuit had rejected the “ serious offense” rule. It said that it also thought that Gideon had re pudiated the Betts v. Brady ad hos special circumstance rule of “ an appraisal of the totality of facts in a given case.” The opinion said that the court was without authority to authorize the announcement of a petty offense rule. Without setting forth any criterion the court said simply that the facts were similar to those in Harvey v. State and this was sufficient precedent for the court's order sustaining the application for a writ of habeas corpus and the vacation of conviction. 20 Two United States District Courts in the Fifth Cir cuit have held that Harvey and McDonald required them to enforce the right to counsel in misdemeanor cases in state courts. Petition of Thomas, 261 F. Supp. 263 (W.D. La. 1966), Rutledge v. City of Miami, 267 F. Supp. 885 (S.D. Fla. 1967). But in the Tenth Circuit in a case involving right to counsel before military tribunals, Chief Judge Murrah said, “ And, it is an open question whether the Sixth Amendment right to counsel is applicable in misdemeanor cases.” Kennedy v. Commandant, U. 8. Disciplinary Barracks, 377 F. 2d 339 (1967) ; There is an excellent discussion of the question in the case of Creighton v. State of North Carolina, 257 F. Supp. 806, (E.D. N.C. 1966) This also arose on an application for a writ of habeas corpus. Petitioner was convicted of “ attempt to commit a felony,” which is a misdemeanor in North Carolina, and was sentenced to twelve months in jail. The ground for his application for habeas is that Gideon required that counsel be appointed to represent indigents tried for misdemeanor. He had not been repre sented by counsel. In discussing the practical problems involved, the court said, p. 808: “ However, unfortunate as it may seem to some, we live in a society where practical considerations must be taken into account. It seems obvious that counsel must be appointed to represent an indigent on trial for his life; it seems equally obvious that it is untenable to appoint counsel for an indigent who has parked too near a fireplug. Somewhere in between these two extremes a line must be drawn — the question for decision today is where.” The court called attention to language used by Mr. Justice Douglas in his dissent in Bute v. People of State of Illinois, 333 U.S. 640, 682 (1948). 21 “ It might not be nonsense to draw the Betts v. Brady line somewhere between that case fa sentence to imprisonment up to twenty years] and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter . . . yet it is the need for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. . . . That need is measured by the nature of the charge and the abil ity of the average man to face it alone unaided by an expert in the law.” The court called attention to the fact that Mr. Justice Reed in Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437 (1948), noted that some members of the Court were of the opinion that the Sixth Amendment through the Fourteenth guarantees counsel in all state criminal proceedings where “ serious” crimes are charged. The District Court in North Carolina came to the conclusion that some misdemeanors involve punishment which results in a substantial deprivation of liberty or property, and in such cases counsel should be appointed to those unable to afford adequate representation. “ On the other hand, it also recognizes that some offenses must be considered so minor that due process does not and cannot require that the guiding hand of counsel be provided to one charged with such a violation.. . . “ The court believes it unwise to set up arbi trary categories of misdemeanors and hold that in one category an accused is entitled to counsel while in another he is not, preferring instead to leave the matter to the discretion of the trial judge. . “ (t)his court thinks it wiser to follow the lead of Mr. Justice Douglas when he said that the need for counsel is measured by the nature of the charge (which would include the possible penalty) and the ability of the average man to face it without the aid of counsel, and use this standard as a partial guide to aid the trial judge in the exercise of his discretion. This provides a much more flexible and, the court believes, a much more satisfactory solution to the problem. It recognizes that not every misdemeanor above a traffic violation re quires the appointment of counsel while admitting that some cases of traffic violations can be imagined where appointment of counsel should be consid ered. ’ ’ The court said that under the facts in this case it would not upset the exercise of discretion by the North Carolina trial judge, and the application for habeas was denied. Arbo v. Hegstrom, 261 F. Supp. 397 (D.C. Conn. 1966). This also involved a petition for a writ of habeas corpus. The defendant had pleaded guilty to a charge of nonsup port, a “ non-felony” offense in Connecticut, and was sentenced to a term of one year in jail. Defendant was never told that the state would appoint counsel for him, nor was counsel appointed, although it was within the discretion of the trial judge to do so. After discussing Gideon the court said, p. 400: “ Of course, from a pragmatic point of view, one can not help but struggle to find some rational line beyond which the absolute right to counsel becomes merely a privilege to be provided only as the particular tribunal sees fit. Although the administration of criminal justice is cloked in ab stract principles, these principles are jeopardized if the system could conceivably break under the sheer weight of the demands which it imposes. On a federal level, the recent Criminal Justice Act of 1964, 18 U.S.C. §3006A, in recognition of the heavy burden which a requirement of counsel in every criminal case would impose, has made a practical and fair compromise with an absolute rule by prescribing appointment of counsel in other than “ petty offense” cases.2” Footnote: “2. 18 U.S.C. §1(3) defines a petty offense as 'any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both . . . . ” The court went on to say that the facts in the case at bar did not demand an extension of Gideon because in Con necticut the crime of nonsupport carried the “ possibility of a substantial prison sentence” and for the petitioner this possibility became reality. “ It would be a gross perversion of solid constitutional doctrine to find a rational distinction between one year in jail (a misdemeanor) and one year and a day in prison (a felony).” The court said that if there was any vitality left in the “ special circumstances” approach in non-felony cases its application would necessitate the issuance of the writ sought. “ The single most relevant consideration under this test is the ability of the accused to fend for himself, without benefit of assistance from one trained in the law. ’ ’ The court held that the failure of the state to apprise petitioner of his right to appointed counsel and to grant him that right if it was requested amounted to a denial of due process. Another excellent discussion appears in the most recent case we have found, Brinson v. State of Florida, County of Dade, 273 F. Supp. 840 (S.D. Florida, Sep tember 20, 1967). It also arises in the Fifth Circuit. 24 Brinson filed a petition for a writ of habeas corpus seeking relief from his confinement in the Dade County Jail, Miami, Florida, attacking sentences imposed by the Metropolitan Court of Dade County. After pleas of not guilty, petitioner was convicted of seven traffic offenses — three of them for careless driving, three for leaving the scene of an accident in volving personal injury, and driving while under the in fluence of intoxicating liquor. The penal court pro vided penalties as follows: 1. Careless driving —■ fine not to exceed $300, or imprisonment not to exceed 60 days, or both. 2. Driving while under the influence of intoxi cating liquor —• for the first conviction, im prisonment not less than 48 hours nor more than 60 days, or by fine not less than $100 nor more than $500, or both; for the second con viction within three years of the first, im prisonment not less than ten days nor more than six months, plus fine; and for a third con viction within five years of first conviction, im prisonment of not less than 30 days nor more than 12 months. 3. Leaving the scene of an accident involving per sonal injuries — for first conviction, imprison ment for not more than 60 days or a fine of not more than $500, or both. On second or any subsequent conviction, imprisonment of not more than one year or by fine of not more than $1,000, or both. For each of the careless driving convictions petitioner was sentenced to pay a fine of $50 or serve 5 days in jail; for each of the convictions for leaving the scene of an accident he was sentenced to a jail term of 20 days 25 and a fine of $200, and in default of payment, an additional term of 20 days; for driving while under the influence of intoxicating liquor he was sentenced to 10 days in jail, a fine of $250, or an additional term of 25 days if the fine were not paid. Thus, he was sentenced to serve a min imum jail term of 70 days, plus a total of 100 more days if he failed to pay the fines. He began serving his time in April, and having failed to pay any of the fine, he remained there until the Federal district court ordered his release in September. The petitioner was not advised of a right to counsel or that an attorney would be appointed to represent him if he could not afford one. The court said: “ It is my opinion that the right to assistance of counsel applies to state court prosecutions for serious offenses, whether they be labeled felonies or misdemeanors. The concept of due process embodied in the Fourteenth Amendment requires counsel for all persons charged with serious crimes. . . . “ In the present case, the petitioner’s convic tion upon the second offense of leaving the scene of an accident involving personal injuries exposed him to a maximum sentence of imprisonment for one year. The third conviction of the same of fense exposed him to the possibility of confinement for an additional year. When a defendant is ex posed to possible imprisonment for one year, he is charged with a serious offense. Accordingly, I hold that petitioner was entitled to assistance of counsel in the Metropolitan Court to defend against the two charges aforementioned. The fact that the offense charged was . . . not termed a felony, is of no consequence. A man who is charged with 26 an offense for which he can spend a year in jail is entitled to assistance of counsel regardless of whether the offense be labeled a felony or misde meanor. ’ ’ The court pointed out that Gideon v. Wainwright overruled the “ special circumstances” test of Betts v. Brady, 316 U.S. 455, regarding right to counsel and that the Supreme Court has not explicitly recognized that the existence of the right depends on the seriousness of the penalty in misdemeanor and traffic cases. The concept, however, was utilized by the Supreme Court in the case of In re Gault, 387 U.S. I. This case involved a juvenile delinquency proceeding in which Gault was determined to be a delinquent and he was committed to a state institu tion. On a habeas corpus petition he claimed he was denied right to counsel. “ The Supreme Court held that due process re quired that Gault received assistance of counsel because ‘the issue . . . whether the child [would] be found to be “ delinquent” and subjected to the loss of his liberty for years [was] comparable in seriousness to a felony prosecution.’ [Emphasis added] 387 U.S. at 36. The ‘serious offense’ rule, in other words, has been expressly used by the Supreme Court to determine the right to counsel.” The court pointed out that: “ In Gault the court cited the recommendations of the President’s Crime Commission that counsel in juvenile eases was necessary to orderly justice. . . . Their recommendation is explicit: ‘as quickly as possible . . . counsel [should be provided] to every criminal defendant who faces a significant penalty if he cannot afford to provide counsel for himself.’ [Emphasis added] . . . The meaning of the recommendation clearly is that all persons charged with a crime, measured by the magnitude 27 of the penalty, should be entitled to counsel. On the other hand, the Commission recommends that ‘petty charges’ should be excluded from coverage.” The court stated that the Criminal Justice Act of 1964, 18 U.S.C. 3006A, divides public offenses into three categories: (1) felonies, (2) misdemeanors, and (3) petty offenses. “ The Act provides for the appointment of counsel in all cases other than petty offenses. A petty offense is defined as ‘ [ajny misdemeanor, the penalty for which does not exceed imprison ment for a period of six months or a fine of not more than $500, or both. . . . ’ Title 18 U.S.C. §1. Not only are funds not provided for court-ap pointed attorneys, but no duty is placed upon the United States Commissioner or the court to advise the defendant that he has the right to be represented by counsel . . . “ Accordingly, this Court holds that the con stitutional right to counsel in non-felony cases de pends upon the maximum possible penalty under the offense charged, this being the test whether or not a ‘serious offense’ is involved. In order that rights of constitutional stature be uniformly ap plied, I hold that the minimum offense for which counsel must be provided is one which carries a possible penalty of more than six months imprison ment, which is the line of demarcation drawn in federal^ practice. In this case, Brinson’s second and third conviction of leaving the scene of an accident involving personal injuries must be in validated since the court failed to notify the de fendant of his right to the assistance of counsel.” In a footnote to his dissenting opinion in Winters v. Beck> suPra> Mr- Justice Stewart said, “ In Arkansas, somJ 28 misdemeanors are punishable by up to three years’ im prisonment.” [Ark. Stats. Ann. §41-805 (1964 Eepl. Vol.).] (The statute cited in this footnote is the penalty provided for conviction of a third offense of illegal co habitation.) We do not think that the Sixth Amendment requires the appointment of counsel for indigent defendants in all misdemeanor cases without regard to the nature of the offense charged nor the possible punishment. If we were required to draw a line we would be inclined to follow the Florida District Court in Brinson and use the standard of a petty offense as defined in 18 U.S.C. §1(3). We do not think that on its face the sentence given petitioner here of 30 days in jail plus a fine of $254 including costs, coupled with the relatively simple nature of the charge, is such as to constitute a “ serious offense” as that term is used in the cases’ discussion of Gideon. Our problem here, however, is complicated by Ar kansas’ archaic statute adopted in 1875, referred to by Mr. Justice Stewart as the “ dollar-a-day” statute. For an indigent, this translates a $254 fine plus 30 days in jail to a total of 284 days’ (approximately 9% months) imprisonment. By any standard this would seem to be a serious deprivation of a defendant’s liberty. M at AST INDIGENT BE IMPRISONED FOR FAILURE TO PAY A PINE? It is argued by petitioner that the substitution of 254 days in jail as punishment for petitioner’s failure to pay his fine and court costs arbitrarily imposes imprison ment for no other reason than indigency. Petitioner cites Nemeth v. Thomas 35 Law Week 2320 (N.Y. Sup. 2 y Ct., Dec. 5, 1966), where the defendant was guilty of 138 traffic offenses. Unable to pay the fines, he had been confined in the workhouse for eight months and he still had approximately 12 months left to serve. The court held that continuing imprisonment would constitute ‘ ‘ cruel and inhuman punishment” and be in violation of the Equal Protection Clause. Also cited is a dissenting opinion of Judge Edgerton in Wildeilood v. U. S., 284 F. 2d 592 (D.C. Cir. 1960), which indicated that when a person cannot pay a fine and is therefore imprisoned, the constitutional question arises: Few would care to say there can be equal justice where the kind of punishment a man gets depends on the amount of money he has.” However, the majority held that when a party is con victed of an offense and sentenced to pay a fine, it is within the discretion of the court to order his imprison ment until the fine shall have been paid (citing Ex Parte Jackson, 96 IT.S. 727, and Hill v. Wampler, 298 TJ.S, 460, in which the Supreme Court said: "In the discretion of the Court the judgment may direct also that the de fendant shall be imprisoned until the fine is paid . . .” ). We are not willing to say that imprisonment in lieu of payment of a fine in the case of an indigent is uncon stitutional per se. We do say here, however, that the interaction of the dollar-a-day” statute of Arkansas with a $254 fine plus a 30-day jail sentence constituted a "serious offense,” and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel, rendered the judgment of conviction and sentence constitutionally invalid . 30 An order will be entered by the Court granting the City of Little Rock a reasonable time to retry petitioner. If he is not retried within such period, the writ of habeas corpus will be issued upon application of petitioner’s counsel. Dated: March 5, 1968. Gordon E. Young United States District Judge 31 APPENDIX B UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 19,278 Captain Henry Beck, Superintend ent of the Pulaski County Penal Farm; and Clint Cavin, Surety, Appellants, v. Robert Winters, Appellee. A p p e a l from the United States Dis trict Court for the Eastern District of Arkansas. [February 25, 1969.] Before M a t t h e s , G ibson a n d L ay, Circuit Judges. M a t t h e s , Circuit Judge. Captain Henry Beck, Superintendent of the Pulaski County Penal Farm and Clint Cavin, surety,1 have ap- 1 Appellant Clint Cavin is surety on Winters’ appearance bond, and apparently was named as a respondent in the habeas corpus proceeding on the theory that Winters is in the technical custody of Cavin. He did not file a responsive pleading in the district court, 32 pealed from the order of the United States district court granting Robert Winters relief in this habeas corpus pro ceeding. The history of the litigation giving rise to this appeal is fully and accurately reported in the district court’s opinion in Winters v. Beck, 281 F. Supp. 793 (E.D. Ark. 1968). A brief resume of the relevant facts will suffice for the purpose of this opinion. Winters, appellee, was tried and convicted without the assistance of counsel in the Municipal Court of Little Rock, Arkansas, for obscene and lascivious conduct pro scribed by Little Rock City Ordinance No. 25-121. He re ceived the maximum punishment of 30 days in jail and a fine of $250, to which was added $4 costs. Being an indigent and unable to pay the fine, he was sentenced to the Pulaski County Penal Farm for a total of 284 days as provided by Ark. Stat. Ann. §19-2416 (1968 Repl. Vol.).2 After appellee had exhausted his state remedies through habeas corpus proceedings, Winters v. Beck, 397 S.W. 2d 364 (Ark. 1965), cert, denied, 385 U.S. 907 (1966) (Mr. Justice Stewart dissenting) he filed a petition for habeas relief in the United States district court on No vember 8, 1966. Judge Young initially dismissed appel lee’s petition on the ground that petitioner was at liberty on bail and not under such restraint as was necessary to require consideration of the petition. On appeal we remanded for a rehearing on the merits in conformity with the teachings of the Supreme Court in Jones v. Cunning ham, 371 U.S. 236 (1933). On remand, Judge Young 2 The statute under which appellee was committed provides in effect that prisoners confined in the county jail or city prison, by sentence of the mayor or police court, for a violation of a city ordinance may, by ordinance, be required to work out the amount of all fines, penalties, forfeitures and costs at the rate of $1 per day. Little Rock Ordinance No. 25-121, and §19-2416, Ark. Stat. Ann., are reproduced in the district court’s opinion. 33 held a hearing and in a soundly-reasoned opinion found that “ the interaction of the ‘dollar-a-day’ statute of Ar kansas with a $254 fine plus a 30-day jail sentence con stituted a ‘serious offense,’ and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel, rendered the judgment of conviction and sentence constitutionally invalid.” 281 F. Supp. at 801-02. On this appeal, appellants in their brief again ques tioned appellee’s standing to seek habeas relief, their position being that since he was at liberty on bond when he filed his petition in the United States district court, he was not in custody within the meaning of 28 U.S.C. §2241, and consequently the writ was not available to him. Our remand of the district court’s first order, motivated by Jones v. Cunningham, supra, disposed of this issue. In oral argument the Assistant Attorney General of Arkansas with candor conceded there was no merit to the lack of standing issue and expressly aban doned this contention. The clear-cut question we must decide is whether the district court was correct in holding that appellee was deprived of his Sixth Amendment right to assistance of counsel as applied to the states through the due process clause of the Fourteenth Amendment. We subscribe to Judge Young’s conclusion and affirm. The Attorney General of Arkansas argues for a re versal on the premise that the question of whether an indigent state defendant is entitled to the assistance of counsel is one “ which traditionally in the American system of government belongs to the Legislatures, not to the courts.” We are reminded that Arkansas has recognized 34 its responsibility by enacting legislation providing “ free counsel” for indigent defendants in felony cases,3 Ark. Stat. Ann. §43-1203 (1964 Eepl. Vol.); that the Supreme Court of Arkansas has held not only that appellee Winters was not entitled to counsel, but has expressly rejected the concept that an indigent defendant charged with a misdemeanor should have the assistance of counsel. Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534 (1967). The Cableton Court was obviously influenced by practical considerations, stating in part: “ [Tjhere are more justices of the peace in Arkansas than there are resident practicing lawyers and there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.” Id. at 538-39. We are fully cognizant of and appreciate appellants’ concern over the federal government intruding into prob lems which are primarily relegated to the states for reso lution. The Supreme Court recognized the importance of comity between the federal and state courts in Ker v. California, 374 TJ.S. 23, 31 (1963). “Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, [364 U.S. 206, 221 (1961)] that ‘a healthy federalism depends upon the avoidance of needless conflict between state and federal courts’ by itself urging that £ [f]ederal-state cooperation in the solu tion of crime under constitutional standards will 3 Apparently, the legal profession in Arkansas recognizes the need for more effective legislation in this area. The Arkansas Bar Asso ciation’s Special Committee on the Defense of Criminal Indigents is preparing proposed legislation that would establish a public de fender — appointed counsel system in Arkansas not limited to felony cases. See Sizemore, Defense of Accused Indigents in Arkansas: New Hope or More of the Same, Arkansas Lawyer, Oct. 1968, at 6. 35 be promoted, if only by recognition of tbeir now mutual obligation to respect the same fundamental criteria in their approaches.’ ” Accord, Jackson v. Bishop, 404 F. 2d 571 (8th Cir. Dec. 9, 1968). The sum of appellants’ argument is predicated on the pronouncement of the Supreme Court of Arkansas that “ [a]ny change in the law of Arkansas, after certiorari was denied in the Winters case, should either come through legislative enactment or by an express decision of the United States Supreme Court.” 420 S.W. 2d at 537~38.4 Apepllants are correct in suggesting that the Supreme Court of the United States has not expressly extended the Sixth Amendment right to assistance^of counsel to misde meanor cases. We are firmly convinced, however, from the rationale of the decisions of the Supreme Court that the fundamental right to counsel extends to a situation where, as here, the accused has been found guilty of an offense, which has resulted in imprisonment for approx imately nine and one-half months. The Supreme Court in Gideon v. Waimvright, 372 U.S. 335 (1963), in holding that the Sixth Amendment guarantee of the right to assistance of counsel is applica ble to the states through the Fourteenth Amendment, pro claimed: “ [I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a . ^ Appellants have placed undue reliance upon denial of certiorari in W inters v. Beck, supra. The sole significance of a denial of a petition for writ of certiorari is discussed at some length in M aryland v. Baltim ore Radio Show , 338 U.S. 912, 917-18 (1950). “ISluch a denial carries with it no implication whatever regarding the Court’s views on the merit of a case which it has declined to review” Id at 919. 36 lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344.5 Appellants seem to regard the Gideon opinion as lim iting the application of the Sixth Amendment to offenses which are characterized as felonies. We are not per suaded that circumscribe the application of its decision to such narrow conKnes.''1 T h e all misdemeanors. Indeed, consideration or tne opinion iiT^ontexTleaSs us to conclude lirahAhe-~»gM-j;o counsel must be recognized regardless of the label of the offense if, as here, the accused may be or is subjected to depriva tion of his liberty for a substantial period of time.6 It should be remembered that the Sixth Amendment makes no differentiation between misdemeanors and fel- J onies. The right to counsel is not contingent upon the length of the sentence or the gravity of the punishment. Rather, it provides that the guarantee extends to ‘‘all criminal prosecutions.” Furthermore, we note that the phrase “ all criminal prosecutions” applies not only to the right to counsel but also to the right to a jury trial. Logically the phrase should be accorded the same meaning 5 Gideon expressly overruled BeJis v . Brady, 316 U.S. 455 (1942), in which the Supreme Court refused to hold that the Sixth Amend ment right to counsel extended to the states through the Fourteenth Amendment. Betts did recognize, however, that where there existed special circumstances, the right to counsel became fundamental and essential so as to require applicability of the Sixth Amendment to the state through the due process clause of the Fourteenth Amend ment. 6 Although there is no limitation of the right to appoint counsel in the majority opinion, Mr. Justice Harlan, in a concurring opinion, comments: “Whether the rule should extend to all criminal cases need not now be decided.” Id. at 351. That the reach of Gideon is not altogether clear is evidenced by two dissenting opinions of Justices in denials of certiorari in W inters v. Beck, 385 U.S. 907 (1966) and DeJoseph v. Connecticut, 385 U.S. 982 (1966). In those opinions the Justices call for the Court to clarify its holding in Gideon. 37 as applied to both protections. Thus we believe sig nificant the Supreme Court’s pronouncements in cases involving the jury trial guarantee. In Duncan v. Louisiana, 391 U.S. 145, 149 (1968), the Supreme Court held that “ trial by jury in criminal cases is fundamental to the American scheme of justice,” and that the Fourteenth Amendment guarantees a right of jury trial in all state criminal cases “ which — were they tried in a federal court — would come within the Sixth Amendment’s guarantee.” The Court concluded that a jury trial is guaranteed in all “ serious offenses” but does not extend to “ petty crimes.” The Duncan Court, however, declined to settle the exact location of the line between petty offenses and serious crimes. It did hold that on the facts before it, where appellant had been sentenced to 60 days in jail and fined $300 for commission of simple battery, a misdemeanor punishable up to two years, he was entitled to a jury trial. In Bloom v. Illinois, 391 U.S. 194 (1968), the Court reiterated its holding in Duncan and held that the right to jury trial extends to serious criminal contempts and that denial of a jury trial to appellant, who was sentenced to imprisonment for two years, was constitutional error. Conversely, in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968), the Court did not extend the right to an offense it found petty. Dyke involved contemnors who were sentenced under a Tennessee criminal contempt statute that provided for a maximum penalty of 10 days in jail and a fine of $50. Relying on its earlier decision in Chaff v. Schnackenberg, 384 U.S. 373 (1966), where it held that a six-month sentence is short enough to be “ petty,” the Court reasoned that the petitioners in this case were charged with a “ petty offense” and had no federal constitutional right to jury trial. 38 Equally significant, we believe, is the Court’s recent declaration that the right to assistance of counsel extends to juvenile proceedings “ which may result in commitment to an institution in which the juvenile’s freedom is cur tailed.” In Re Gault, 387 IT.S. 1, 41 (1967)7 The Fifth Circuit also has been faced with the ques tion of how far the right to counsel extends and has refused to formulate a rigid rule which would either extend the protection to all criminal cases or limit it only to felonies. Rather, in adopting a broad view it expressly ruled that the safeguard extends to misdemeanor cases, but also recognized that there are some offenses where one would not be entitled to the services of an attorney at the expense of the state.8 In Harvey v. Mississippi, 340 F. 2d 263 (5th Cir. 1965), the defendant, without being advised that he was entitled to assistance of counsel, pled guilty to, was con victed of and sentenced to the maximum punishment of a $500 fine and 90 days in jail for possession of whiskey, a misdemeanor in Mississippi. Noting that such a plea had “ grievous consequences,” the court held that under the facts of the case, defendant was unconstitutionally 7 The Court stated: “The juvenile needs the assistance of counsel to cope with prob lems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. at 36. 8 In M acDonald v. Moore, infra, the court commented: “It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the serv ices of an attorney at the expense of the state or the munici pality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state,” 39 convicted because of the failure to advise him that he was entitled to be furnished counsel.9 In MacDonald v. Moore, 353 F. 2d 106 (1965) the Fifth Circuit reaffirmed its position in Harvey. There ap pellant was charged (1) with illegal sale of gin, and (2) with illegal possession of whiskey and gin, both misde meanors under Florida law. She pled guilty and was sentenced to 6 months in jail or $250 fine on each charge. Because the facts in the case were so similar to those in Harvey, the court stated that it was required to hold that appellant was entitled to assistance of counsel. Recently, the Fifth Circuit again dealt with the ques tion and expressly held that under the Sixth and Four teenth Amendments, right to counsel extends to misde meanor cases. Goslin v. Thomas, 400 F. 2d 594 (1968).’° Defendant asserted that he had been denied counsel in four Louisiana misdemeanor proceedings. In the last proceeding, defendant had been sentenced to jail for one year. 9 The court quoted from Evans v. R ives, 126 F. 2d 633, 638 (D.C. Cir. 1942) approvingly: “It is . . . suggested . . . that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘serious offenses’. No such dif ferentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. . . . And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction be tween loss of liberty for a short period and such loss for a long one.” *0 The lower court’s opinion, 261 F. Supp. 263 (W.D. La. 1966), held that under H arvey and M acDonald, Gideon must be applied to all criminal cases. The Court of Appeals for the Fifth Circuit stopped short of this holding, stating that the only question was whether the right to counsel under the Sixth and Fourteenth Amendments extends to state misdemeanor cases. 40 Based on the rationale of the foregoing authorities,11 we conclude that the right to counsel cannot be dependent upon the mere arbitrary label that a state legislature at taches to an offense.12 We find it unnecessary to decide that all indigents have the right to assistance of counsel in all misdemeanor prosecutions, no matter how trivial may be the conse quences. Whether a person accused of an offense labeled as a misdemeanor is entitled to counsel must be resolved upon proper consideration of all circumstances relative to the question. In addition to the financial status of the accused, the punishment that may be imposed if he is found guilty is certainly a vital factor. The trial court should fully explore all of the relevant circum stances, and if it is determined that counsel should be provided, the accused must be so informed. Unless he intelligently and knowingly waives the right, counsel 31 Other federal cases rejecting the misdemeanor-felony dichotomy and holding that the Sixth Amendment right to assistance of counsel extends to misdemeanor prosecutions are: Brinson v. Florida, 273 F Supp 840 (S.D. Fla. 1967); R utledge v. City of Miami, 267 F, Supp. 885 (S.D. Fla. 1967); Arbo v. H egstrom , 261 F. Supp. 393- (D. Conn. 1966). See Stubblefield v. Beto, 399 F. 2d 424, 425 (5th Cir. 1968) (dissenting opinion); W ilson v. Blabon, 370 F. 2d 997 (9th Cir. 1967). See also the following articles: Carlson, Appointed, Counsel in Criminal Prosecutions; A Study of Indigent D efense, 50 Iowa L. Rev. 1073 (1965); Kamisar, B eits v. Brady T w enty Years Later: The Right to Counsel and Due Process V alues, 61 Mich. L. Rev. 219 (1962); Kamisar and Choper, The R ight to Counsel in M in nesota: Som e F ield F indings and L egal-P olicy O bservations, 48 Minn. L. Rev. 1 (1963); Milroy, Court A ppointed Counsel for Indigent M isdem eanants, 6 Ariz. L. Rev. 280 (1965); Comment, The R ight to Counsel for M isdem eanants in State Courts, 20 Ark L. Rev. 156 1966). 12 As Mr. Justice Stewart pointed out in his dissent in the Court’s denial of certiorari in W inters v. Beck, supra, some misdemeanors in Arkansas are punishable by up to three years’ imprisonment. Ark. Stat. Ann. §41-805 (1964 Repl. Vol.). 41 should be furnished. We go no further in attempting to delineate the guidelines.13 In summary, it is abundantly clear that the district court correctly decided the question at issue. The order vacating the judgment and sentence is affirmed. A true copy. Attest: Clerk, U.S. Court of Appeals, Eight Circuit. 13 While we do not formulate and lay down an arbitrary, me chanical rule which could automatically and simply be applied in every case to determine whether the right to assistance of counsel attaches, we do point out some of the various approaches and sug- gesions promulgated by courts, commissions and statutes. In Brinson v. Florida, 273 F. Supp. 840 (S.D. Fla. 1967), the court constructed what it believed to be the proper test: “The right to assistance of counsel is determined by the seriousness of the offense, measured by the gravity of the npnanvrtn which me defendant is exposed on any given violation” Id. at 843. The court further stated: “I hold that the minimum offense for which counsel must be provided is one which carries a possible penalty of more than six months im prisonment, which is the line of demarcation drawn in federal practice.” Id. at 845. The Criminal Justice Act of 1964, 18 U.S.C. §3006(a), provides that appointed counsel in federal courts shall be afforded to indigents in all felony and misdemeanor cases other than petty offenses. The Act defines petty offenses as those punishable by not more than six months imprisonment or $500 fine or both. 18 U.S.C. §1. The ABA’s project on Minimum Standards for Criminal Justice in its tentative draft on Standards R elating to Providing D efense Services §4.1 (1967) has recommended the following rule: “Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise. In the C hallenge of Crime in a Free Society. A Report by the P resi dent's C om m ission on Law Enforcem ent and A dm inistration of Justice (1967), the commission recommended: “The objective to be met as quickly as possible is to provide counsel to every criminal defendant who faces a significant penalty, if he cannot afford to provide counsel himself. This should apply to cases classified as misdemeanors as well as to those classified as felonies.” Id. at 150. In its summary, however, the commission stated that “traffic and similar petty charges” are excluded from this recommendation. Id. at viii. 42 APPENDIX C L it t l e R ock C ity O r d in a n ce N o. 25-121 — It is hereby declared to be a misdemeanor for any person to participate in any public place in any obscene or lascivious conduct, or to engage in any conduct calculated or in clined to promote or encourage immorality, or to invite or entice any person or persons upon any street, alley, road or public place, park or square in Little Rock, to accompany, go with or follow him or her to any place for immoral purposes, and it shall be unlawful for any person to invite, entice, or address any person from any door, window, porch, or portico of any house or building, to enter any house or go with, accompany or follow him or her to any place whatever for immoral purposes. The term ‘ ‘ public place ’ ’ is defined to mean any place in which the public as a class is invited, allowed or per mitted to enter, and includes the public streets, alleys, side walks and thoroughfares, as well as theaters, restaurants, hotels, as well as other places. The term “ public place” is to be interpreted liberally. Any person found guilty of violating the provisions of this section shall, upon conviction, be fined in any sum not less than ten dollars, nor more than two hundred and fifty dollars or imprisoned for not less than five days nor more than thirty days, or both fined and im prisoned. 43 APPENDIX D Filed Feb. 25,1969, Robert C. Tucker, Clerk JUDGMENT UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 19278. September Term, 1968 Captain Henry Beck, Superintend ent of the Pulaski County Penal Farm ; and Clint Cavin, Surety, Appellants, vs. Robert Winters, Appellee. A p p e a l from the United States Dis trict Court for the Eastern District of Arkansas. This Cause came on to be heard on the record from the United States District Court for the Eastern District of Arkansas and was argued by counsel. On Consideration Whereof, it is now here ordered and adjudged by this Court, that the order of the said District Court appealed from in this cause be, and is hereby, affirmed. February 25, 1969 44 APPENDIX E UNITED STATES COURT OP APPEALS FOR THE EIGHTH CIRCUIT No. 19278 Captain Henry Beck, Superintendent, etc., et al., Appellants, vs. Robert Winters, Appellee. A p p e a l from the United States Dis trict Court for the Eastern District of Arkansas. On consideration of the motion of appellants for a further stay of the mandate in this cause pending a peti tion to the Supreme Court of the United States for a writ of certiorari, it is now here ordered by this Court that the issuance of the mandate herein be, and the same is hereby, further stayed for thirty days from and after April 14, 1969, which is May 13, 1969. If within this period of time there is filed with the Clerk of this Court a certificate of the Clerk of the Supreme Court of the United States that a petition for writ of certiorari and record have been filed, the further stay hereby granted shall continue until the final dispo sition of the case by the Supreme Court. April 7, 1969.