dissenting.
I dissent from the judgment of the majority of the court on the authority of Doughty v. Maxwell, Warden (1964), 11 L. Ed. 2d 650; Gideon v. Wainwright, Dir. (1963), 372 U. S. 335; Carnley v. Cochran, Dir. (1962), 369 U. S. 506. See, also, Ross v. Haskins, Supt. (1965), 2 Ohio St. 2d 145; State v. Green (1965), 1 Ohio St. 2d 102; Yarbrough v. Maxwell, Warden (1965), 1 Ohio St. 2d 91; Madison v. Maxwell, Warden (1964), 177 Ohio St. 84, 88 (dissenting opinion); Johnson v. Maxwell, Warden (1964), 177 Ohio St. 72; Conlan v. Haskins, Supt. (1964), 177 Ohio St. 65, 68 (dissenting opinion).
The majority in the instant case predicates its judgment upon a written notation in the trial judge’s bench calendar that the petitioner’s “rights” were explained to him, and under the reasoning of the majority this includes explanation of his statutory right to counsel, thus creating a distinction between this case and Conlan v. Haskins, Supt., supra.
It is difficult to see how this case differs from Conlan, as the majority claims, since the court there based its decision in part upon the long standing duty of the trial judge to inform the accused of his right to counsel. The majority made no distinction between constitutional and statutory rights, stating at page 65:
“# * * The journal does not specify the constitutional rights about which he was informed, but they would clearly include rights arising both under those provisions of the Constitution of Ohio and the statutes enacted to implement them which provide for appointment of counsel for an indigent accused.”
*120The vague notation on the calendar “rights explained” makes no mention of what rights were explained, how they were explained, or that there was any waiver of those rights, and is too indefinite to overcome petitioner’s positive statement that his right to counsel was not explained to him. Further, there is no evidence of any kind which would tend to show that petitioner intelligently and understandingly waived his right counsel, as required by Carnley v. Cochran, Dir., supra.
Since respondent has failed to substantiate his claim that petitioner was informed of his right to counsel and waived that right, petitioner is entitled to be released from custody.