¶1(dissenting). Although I agree with practically everything that is said in the majority opinion and particularly with the construction placed on the several cases cited therein, I am unable to agree with the exact manner in which the majority reached its final conclusion, nor, am I able to agree with the final conclusion itself.
¶2On the last page of the majority opinion appears this paragraph: “It is our conclusion that in the facts and circumstances of this case the plea of guilty should not have been accepted without the defendant having benefit of counsel, and, in accepting the plea, the defendant’s rights under the Fourteenth Amendment were violated.”
¶3It strikes me that the majority in reaching the above quoted conclusion by-passed one' important question. It is: Does the evidence show that appellant did not have the capacity [mental or otherwise] to waive the offer of counsel? I have read carefully the decisions of the United States Supreme Court cited in the opinion together with additional opinions: Williams v. Kaiser, 323 U. S. 471, 65 S. Ct. 363, 89 L. Ed. 398; De Meerleer v. Michigan, 329 U. S. 663, 67 S. Ct. 596, 91 L. Ed. 584; and; Rice v. Olson, Warden, 324 U. S. 786, 65 S. Ct. 989, 89 L. Ed. 1367. The rule announced by all of these decisions pertinent to the question involved in this case, may, as I understand it, be stated in this way: Every person who is charged with or tried for a criminal offense and who is unable to provide counsel, is, under the Federal Constitution, entitled to have an attorney appointed by the court, unless he waives the offer of counsel. The cases go on to explain that the question of waiver of counsel may be raised several different ways. For example: (a) If the accused is not advised of his right to have counsel, then it follows that he has not waived it, and (b) if the accused is so lacking in mental capacity that he is unable to waive the offer of counsel then it cannot be said that he has waived it, or (c) if [as in the case of Gibbs v. Burke, Warden, 337 U. S. 773, 69 S. Ct. 1247, 93 L. Ed. 1686] during a trial some legal question arises which the accused [even though of full age and sound mind] could not possibly comprehend, then he cannot be said to have waived counsel and his rights have been violated.
¶4Therefore, it appears to me, that in every case of this nature a fact question is presented. The point which I here try to stress is amplified in the Bice case, supra, where the court said: “It is enough that a defendant charged with an offense of this character is incapable adequately of making his defense, that he is unable to get counsel, and that he does not intelligently and understandingly waive counsel.” Applying the rule above announced I view the cause under consideration in this manner: Appellant was advised by the prosecuting attorney of his right to have counsel appointed by the court, and evidently did not accept it, and I am not convinced that appellant did not .have sufficient mental capacity to understand what he was doing when he refused the offer. In this connection, I hold to this view: If the evidence regarding appellant’s mental capacity poses a close question, then I would resolve the doubt, if any, in view of the finding of the trial court. Any other procedure, it seems to me, would be impracticable, unreasonable, and contrary to established procedure. In all other fact matters this court defers to the discretion and sound judgment of the trial judge, so why not in this instance. So, I would affirm.