Defendant assigns as error the court’s failure to determine his indigency and appoint counsel for him until after he had entered his plea and the jury had been selected, sworn and empaneled. The assignment of error must be sustained.
Defendant was tried and convicted of a misdemeanor punishable by a fine, imprisonment for a maximum of two years, or both. G.S. 14-33 (c) (2). If an indigent person, defendant was entitled to have counsel provided by the State to represent him during any critical stage of the action or 'proceeding. G.S. 7A-450 et seq. Where a defendant is charged with a felony or a serious misdemeanor, it is the duty of the trial judge to “(1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived.” State v. Morris, 275 N.C. 50, 60, 165 S.E. 2d 245, 251-252.
It does not appear from the record that defendant ever waived his right to counsel. Waiver of counsel may not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 8 L.Ed. 2d 70, 82 S.Ct. 884 (1962). Neither does it appear that the question of defendant’s indigency was settled at any time before or during the trial. It does appear that defendant did not have the assistance of counsel during critical stages of the prosecution. The State argues that since defendant’s plea was “not guilty,” no prejudice could have resulted from his not being afforded counsel before the plea was entered. Assuming, without deciding, that this is true, the fact remains that defendant did not have the assistance of counsel in selecting the jury. It cannot be presumed that no prejudice resulted from his not having counsel provided him during this important stage of the proceeding.
New trial.
Judges Parker and Vaughn concur.