Dissenting Opinion by
Mr. Chief Justice Bell :This case is decided by the majority on a stretched technicality that will not only greatly increase litigation which is already swamping our Courts but will also further jeopardize the protection of Society from criminals.
The District Attorney testified in Fairman’s habeas corpus proceeding (hearing) that while he could not remember the details of this particular plea,* it was his practice “in every case” to advise an uneounseled defendant of his right to counsel, and if without means, that the Court would appoint counsel for him. Furthermore, the Opinion of the lower Court was based not only on the testimony of the District Attorney but even more importantly, (1) on the personal recollection of the Trial Judge of the facts at the time the waiver of counsel was made, and (2) the record itself.
The record is adequate to show a prima facie case of a voluntary, understanding and intelligent waiver *144of counsel by tbe defendant in pleading guilty in writing to tbe indictments for robbery and crimes well known to every adult and juvenile alike.
For example, tbe Court records disclose that on the District Attorney’s Bills of Indictment, Fairman signed the following printed statement: “And now to wit: The second day of January, A.D. 1961, the defendant pleads guilty, waiving grand jury action and right to counsel. Richard J. Fairman.”
Tbe decision of tbe majority that this robber is entitled, nearly five years after bis guilty plea, to a new trial on tbe basis of a conjectural doubt which flies in the teeth of tbe clear record of waiver of counsel, makes the protection of and Justice to Society a travesty.
For these reasons, I vigorously dissent.
A District Attorney and a Trial Judge often hear more than 100 guilty pleas. Unless the case or the defendant is exceptional, how is it possible to realistically expect any District Attorney or any Judge to remember, many years after the trial, details as to waiver or warning in every ease. Why not take our heads out of the clouds and come down to this practical crime-ridden earth?