It is apparent that the petitioner, then a 17 year old boy with a sixth grade education, was called upon to plead to an indictment charging him with a capital offense and that a plea of guilty to second degree burglary was entered on his behalf by an able attorney who had talked with the petitioner for only five minutes and for the sole purpose of explaining to him, at the request of the presiding judge, the difference between the various pleas which might be entered upon such an indictment. The attorney says positively that he was not appointed to represent the petitioner and did not consider himself the petitioner’s counsel.
Under these circumstances, it must be deemed that the petitioner was denied the right to counsel guaranteed to him by Article I, § 11, of the Constitution of this State, as well as by the Fourteenth Amendment to the Constitution of the United States, as that amendment is now interpreted by the Supreme Court of the United States. State v. Pearce, 266 N.C. 234, 145 S.E. 2d 918; State v. Simpson, 243 N.C. 436, 90 S.E. 2d 708; Hawk v. Olson, 326 U.S. 271, 66 S. Ct. 116, 90 L. Ed. 61; Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377; Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527. Consequently, upon his petition for post conviction review of the judgment entered against him at the November 1947 Session of the Superior Court of Stanly County, the superior court should have vacated that judgment and the defendant’s plea, and should have ordered a new trial of the petitioner upon the indictment charging him with burglary in the first degree.
The judgment of the superior court upon the hearing of the petition for post conviction relief is therefore reversed, and this cause is remanded to the superior court for the entry in the post conviction proceeding of a judgment in accordance with this opinion.
If, indeed, the warrant for the petitioner’s arrest upon the charge of first degree burglary was not served upon him, he may nevertheless be tried upon the indictment for the offense charged therein. Neither the service of a warrant nor the preliminary hearing upon the charge is a prerequisite to a valid trial upon a bill of indictment properly returned. State v. Hargett, 255 N.C. 412, 121 S.E. 2d 589.
Reversed and remanded.