dissenting.
The opinion of the Court bids fair to “furnish opportunities hitherto uncontemplated for opening wide the prison doors of the land.” Foster v. Illinois, 332 U. S. 134, 139 (1947). Without so much as mentioning Betts v. Brady, 316 U. S. 455 (1942), it cuts serious inroads into that holding and releases petitioner, now a fourth offender though only 18 years old, from his 3-to-5-year sentence for larceny from the person. The Court does so on the ground of a single circumstance occurring at the trial, i. e., the fact that a codefendant, David Cain, was permitted at the close of the State’s case to plead guilty to “larceny, in such amount that it is a misdemeanor.” The Court says that this circumstance “made this a case where the denial of counsel’s assistance operated to deprive the defendant of the due process of law guaranteed by the Fourteenth Amendment.” Strangely enough, the Court digs up this ground sua sponte, for neither the petitioner, the State, nor any court of North Carolina thought such circumstance produced sufficient “unfairness” in the trial even to discuss it, though its existence was mentioned in the recital of facts in petitioner’s brief. The truth is that the courts of North Carolina have held affirmatively that petitioner received a fair trial, and that no special circumstances were shown to indicate that lack of counsel resulted in prejudice to petitioner.
The Court, however, speculates that Cain’s change in plea “raised problems requiring professional knowledge *705and experience beyond a layman’s ken.” The Court says that “The prejudicial position in which the petitioner found himself” resulted. But this is purely speculative and, I submit, does not at all follow. In fact, the jury— despite language in the court’s charge which indicated the presence of “violence, intimidation and putting [the victim] in fear” — refused to find petitioner guilty of the common-law offense of robbery but only found him guilty of the lesser offense, larceny from the person. The record here would clearly support a verdict of guilty on the robbery charge. As I appraise the jury’s verdict, it would be much more realistic to say that David Cain’s plea of guilty influenced the jury not to find petitioner guilty of the greater offense. After all, Cain was only the driver of the car and participated no further in the criminal enterprise. In fact, the victim could not even identify him at the trial. Cain, unlike petitioner, had “wholeheartedly admitted” his guilt to the officers. This apparently brought on his plea. Petitioner on the other hand was the chief actor in the criminal enterprise. In addition, he had a criminal record, had served a term in prison, was twice an escapee therefrom, and from the record here gives every appearance of being a hardened criminal. Still the jury found him guilty only of the lesser offense, larceny from the person. It is reasonable to assume that it did this because Cain was permitted to plead to the lesser offense of larceny.
The Court cites three North Carolina cases* in support of the “potential prejudice” which it finds petitioner may have suffered from Cain’s change of plea. None of these cases were cited by the parties. As I have said, the point was not raised.in the briefs. But even the North Caro*706lina cases cited by the Court do not support its new theory for reversal. All they indicate, as the Court frankly points out, is that care must be exercised to avoid “undue prejudice.” In this regard the trial court fully protected petitioner all during the presentation of the case and gave a full, fair, and intelligent charge to which no objection is even now being made by petitioner. It is intimated by the Court that North Carolina law required a charge that Cain’s plea not be considered as any evidence bearing on petitioner’s guilt. But the. short answer is that three North Carolina courts have considered this case and not one has even mentioned the point. The Court says this underlines the petitioner’s need for counsel. I submit that he has had counsel since his Post Conviction Hearing Act case was filed some two years ago, and not once has the handling of the Cain plea been urged as error necessitating reversal.
While I do not wish to labor the issue, I must say that careful study of the case convinces me that it was a simple one and the trial was without complexity or technicality. The petitioner and three others induced their victim, an elderly man, to enter their car on the ruse that they would take him home for a dollar. It was in the nighttime and on the way to his home they drove into some woods. Petitioner ordered the victim out of the car, directed him to hold up his hands, and then went through his pockets, taking his billfold, containing some $24. The sole question for the jury was one of fact, namely, did petitioner take the old man’s money? The State offered three witnesses in support of its position. The petitioner and his codefendant took the stand and gave their version of the affair, each admitting his presence on the scene but denying any robbery. There is not and never has been any claim that the State withheld any evidence or used perjured testimony or that incompetent evidence was admitted against the petitioner; or that he was denied *707compulsory process for witnesses; or that he was ignorant or feeble-minded; or that the instructions of the court were not full and sufficient. As the Court itself finds, this “is not a case” where the age of the defendant or the deliberate “overreaching by court or prosecutor” resulted in an “unfair trial.” Moreover, the Court finds that the case upon which the petitioner primarily depends, Wade v. Mayo, 334 U. S. 672 (1948), is in nowise controlling. It therefore follows that the lone special circumstances upon which petitioner depends, namely, his “youthfulness ... his lack of formal education, his timely request for the appointment of counsel, his inability to hire a lawyer, and his own fumbling defense,” do not show a lack of due process based on the trial judge’s refusal to appoint counsel for him.
The record clearly shows, as the trial court found, that the petitioner “is intelligent, well informed, and was familiar with and experienced in Court procedure and criminal trials, having been previously tried on different occasions for careless and reckless driving, for breaking and entering, for driving while under the influence of intoxicating liquor, and for assault and robbery.” Only at the previous term of the same court, petitioner had defended himself on the assault and robbery charge and was found not guilty by the jury. But what more could emphasize the petitioner’s ingenuity in defending himself than his defense here? It was simple and direct. Both he and his codefendant had this story: The victim, before entering the car, had been drinking beer and on the way home gave petitioner the money to buy a pint of vodka. After they all partook of the vodka the victim became ill and nauseated while sitting in the back of the car. The petitioner then got in the back seat, and when the car was stopped he helped the victim out and the latter fell down on the ground. Petitioner then got back in the car and his group drove away. After leaving the victim, *708petitioner’s codefendant found the billfold in the car. It “almost went behind the [back] seat.” It had no money-in it but petitioner proposed that they take it back to the victim. They then returned to where the victim got out of the car but he was gone, and although they “got out and hollered for him,” he could not be found. After the defendants left the scene, the billfold was thrown from the car by petitioner’s codefendant and was not produced at the trial. This was indeed a shrewd defense. The only trouble was that the jury did not believe it.
On the facts of this record, I can see no basis for saying that petitioner was denied due process, Betts v. Brady, supra, and accordingly would affirm the judgment.
State v. Hunter, 94 N. C. 829, 835; State v. Bryant, 236 N. C. 745, 747, 73 S. E. 2d 791, 792; State v. Kerley, 246 N. C. 157, 97 S. E. 2d 876.