dissenting.
If, as the opinion of the Court suggests, the Illinois Supreme Court had ruled that petitioner could not raise the question of his right to counsel by reason of the abbreviated common law record, I would agree that the judgment should be affirmed. For then petitioner would be remitted to other state procedures for vindication of his constitutional right. The Illinois Supreme Court rested on that ground when it refused to consider his claim that he was deprived of due process of law by reason of the method of his arrest and the unfairness of the trial. But when it came to consider the question of his right to counsel, the inadequacy of the record was not the ground it gave for barring him from showing that he was unqualified to waive the constitutional right:
“His first contention is that the court erred in not appointing an attorney to represent him during arraignment. The right to be represented by counsel is one which the defendant may waive or claim, as he shall determine. No duty rests upon the court to provide legal assistance for an accused, unless he states, under his oath, his inability to procure counsel, and expresses a desire to have the court appoint one for him. (People v. Braner, 389 Ill. 190; People v. Corrie, 387 Ill. 587; People v. Childers, 386 Ill. 312.) There being no bill of exceptions, and it not appearing that plaintiff in error sought to have an attorney appointed for him, this assignment of error cannot *181be sustained. People v. Stubblefield, post, p. 609; People v. Stack, ante, p. 15; People v. Braner, 389 Ill. 190.” 391 Ill. 594, 595; 63 N. E. 2d 763, 764.
By the rule there announced the record was inadequate only in one respect — the absence of a bill of exceptions showing that petitioner asked that an attorney be appointed for him. But that neglect by a defendant is not fatal, at least in a capital case. If a defendant is not capable of making his own defense, it is the duty of the court to appoint counsel, whether requested so to do or not. Williams v. Kaiser, 323 U. S. 471, 476. As we stated in that case, pp. 475-476:
“The decision to plead guilty is a decision to allow a judgment of conviction to be entered without a hearing — a decision which is irrevocable and which forecloses any possibility of establishing innocence. If we assume that petitioner committed a crime, we cannot know the degree of prejudice which the denial of counsel caused. See Glasser v. United States, 315 U. S. 60, 75-76. Only counsel could discern from the facts whether a plea of not guilty to the offense charged or a plea of guilty to a lesser offense would be appropriate. A layman is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law’s complexity, or of his own ignorance or bewilderment.”
Therefore the least which we should do is to vacate this judgment and remand the case to the Illinois Supreme Court. For as Mr. Justice Murphy points out, there is ample evidence in the record, certified to us from that court, to support petitioner’s claim that he was not capable of making his defense. If that evidence may be considered in this proceeding, petitioner should prevail. Though *182the basis of the action of the Illinois Supreme Court be deemed less clear than I have indicated, a remand to it would be appropriate so that any state procedural question may be untangled from the question arising under the Federal Constitution. See State Tax Commission v. Van Cott, 306 U. S. 511.