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 is correct in its statement that this case is unlike Johnson v. Maxwell, Warden, 177 Ohio St. 72; Yarbrough v. Maxwell, Warden, 1 Ohio St. 2d 91; Ross v. Haskins, Supt., 2 Ohio St. 2d 145; and Gates v. Haskins, Supt., 3 Ohio St. 2d 27.
In those cases the court had before it either affirmative showings that the accused had not been offered counsel, or an entirely silent record, with no statement by the trial judge. It is submitted, however, that in light of the decisions by the United States Supreme Court, this is a distinction without a difference.
In this case, the original record is silent on the question
*123whether the petitioner was offered counsel and intelligently and under standingly waived the right to the assistance of counsel. Carnley v. Cochran, Dir., supra, holds that it is impermissible to presume waiver from a silent record.
The record in this proceeding is likewise silent upon the point of intelligent and understanding waiver of the right to counsel.
Furthermore, it is questionable whether, in the face of an original record which is silent on the matter, a statement by the trial judge as to his “practice” satisfies the requirement in Carnley v. Cochran, Dir., supra, that the record affirmatively show that the accused was offered the assistance of counsel and intelligently and understandingly waived his right thereto.