¶1(dissenting).
¶2It is conceded by all conversant with the subject that the Sixth Amendment requires that an indigent defendant have the right to court-appointed counsel in all criminal cases. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. As far as we in Kentucky are concerned, this is not a right arising solely from the federal constitution. Section 11 of our state constitution has been construed to require the presence of counsel.
¶3In my opinion, the majority in this case completely missed the point. The question is not one of right to appointed counsel. This point is conceded. There are three questions presented in the case.
1.Was there an intelligent waiver of the right to counsel?
2. Does the record conclusively show the trial court was in error when it found the defendant was not indigent?
3. If the trial court was in error for failure to appoint counsel, was this cured when no objection was timely made in the trial court?
¶4On the first point, after the initial counsel had been relieved, the record does not indicate that the appellant made a motion or indicated in any manner his desire to have another attorney appointed. He fully acquiesced in the beginning of the trial and he failed to ask for counsel. The record does not indicate mental incapability upon the part of the defendant or in any way indicate that he did not have a full and complete understanding of what transpired. I believe this is an intelligent waiver of the right to appointed counsel.
¶5On the second point, the trial court found the defendant was not indigent. This is a finding of fact and insofar as I am able to determine should be binding on this court and all other appellate courts unless clearly erroneous. If the defendant was not indigent, there was no right to appointed counsel.
¶6On the third point, we have many times said that we will not hear defendants upon points raised for the first time in this court. The defendant did not raise the point in the trial court that he was not properly appointed counsel; it was raised for the first time in this court. This was too late.
¶7If this court and all other courts would limit the appointment of counsel to those defendants proven to be indigent who did not intelligently waive the right, the burden on the trial bar of this Commonwealth for the defense of these people would still be staggering. To ask a lawyer to defend a person who fritters his resources away on useless bonds is appalling. Of no other profession does our society demand such contribution of time and effort. The law does not require the medical profession *501to render free services no matter how worthy or indigent the patient. Even the ministry expects to be paid when performing marriages and funerals. The cost of obtaining legal education mounts from day to day. The expenses of maintaining an office and hiring help to operate a law office are staggering. Society has no right to demand of a lawyer that he donate his time and services to those who in many instances are perfectly able to pay for it. The taking of any man’s property, even be he a lawyer, without just compensation violates every known constitutional principle. One of our honorable presidents, Abraham Lincoln, first observed that a lawyer’s time and advice is his stock in trade. Now he must donate his stock in trade to an ungrateful few in an even more ungrateful society. The great evil that has been done in this instance was first done when the courts held that an indigent defendant must be appointed counsel and did not designate the proper governmental officials to compensate the counsel. In my opinion the courts have never had the right to say to a lawyer you must represent any man without compensation.
¶8The Supreme Court has held that black children are entitled to equal education but they have never indicated that any educator must furnish it out of his own pocket. As far as I know the lawyer is the only person in society who is expected to give of his services without pay. This cannot be justified.
¶9If courts have the inherent power to direct a lawyer to defend an indigent criminal then those same courts have the inherent power to direct the state treasurer to pay the lawyer. If the furnishing of counsel is the obligation of the state then it is the obligation of all the people collectively and should be paid out of the common treasury. How did the burden of society get shifted to the shoulder of the lawyer alone? He should not have to bear it. I refuse as a judge to require it.
¶10For the foregoing reasons, I dissent.