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

    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.