(dissenting). Official documents, the accuracy of which is not contested, show conclusively that in 1931 when each of these brothers pleaded guilty without counsel and each received a sentence of seventeen and a half to thirty years, neither defendant was mentally capable of understanding legal procedures or phraseology. As to Fritz Boehm, the probation report which must have been in the hands of the sentencing Judge at sentence time (see Code Crim. Pro., § 482) shows that he was a moron with the mentality of a five-year-old child. Many years later, when he was transferred to a prison from the State institution for “ mental defective ” delinquents at Napanoch (Correction Law, § 438) Fritz Boehm, who had meanwhile gone to school at the latter institution, had reached a mental age of ten years and eight months and had an I.Q. of 71. Edward Boehm, without the aid or advice of a lawyer, pleaded guilty in 1931 on the very day on which he was arraigned. When he left Napanoch twenty-two years later his mental age was eleven years and one month and his I.Q. was 74. Napanoch records show that neither brother could read or write when they came there in 1932. although each was over twenty years old. ‘ ‘ There are some individuals who, by reason of age, ignorance or mental incapacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity *370is purely personal and can be determined only by an examination and observation of the individual ” (Wade v. Mayo, 334 U. S. 672, 684; see Palmer v. Ashe, 342 U. S. 134, 136, 137; Massey v. Moore, 348 U. S. 105, 108, 109). Since such incapacity appears of record without dispute, the 1931 judgment of conviction as to each defendant was as matter of law totally void (see People v. Lewis, 413 Ill. 116, 122; Allen v. Commonwealth, 324 Mass. 558, 562; The Right to Counsel, Wis. L. Rev., March, 1955, pp. 301-303). When there appears so total a deprivation of the most fundamental of rights, no court has -a choice as to whether or not to annul the conviction, and indications of probable guilt have no bearing on the issue of whether their constitutional rights were violated.
This is not the usual coram nobis proceeding where there is presented a question of fact as to whether a defendant was told of his right to have legal counsel and, if so, whether he consciously and knowingly waived that right. There is testimony here that each of the sentencing* Justices was accustomed in 1931 to inform defendants, on arraignment, of their right to counsel. But whether or not the Boehm brothers or either of them was so notified is beside the point on this record. A five-year-old child (or a ten-year-old child) in court without a lawyer simply would not know what was going on. To tell him in the formal language of sections 188 and 308 of the Code of Criminal Procedure that he was entitled to be represented by counsel at every stage of proceedings, would be a simple waste of words. Each of the several concepts involved in that verbal formula would be to him, in the absence of a most detailed and careful explanation appropriate to his years, outside of and beyond his understanding. And it can make no difference whether the Judge did or did not realize the mental immaturity of the defendant (although in the case of Fritz Boehm he was put on notice by the probation report).
The order of the Appellate Division should be reversed and the order of Special Term reinstated.
Conway, Ch. J., Fuld and Burke, JJ., concur with Van Voorhis, J. • Desmond, J., dissents in an opinion in which Froessel, J., concurs; Dye, J., taking no part.
Order affirmed.