(dissenting).
I respectfully dissent.
Waiver of counsel by an accused must be more than a mere formal acquiescence. The law is designed to protect an accused from an improper, unwise and foolish forfeiture of the valued right to needed counsel. To waive a right, the meaning and value of which the individual has no knowledge, is the equivalent of no waiver at all. A comprehensive examination by the trial court at the very least should demonstrate that the accused is informed and fully understands the nature and elements of the offense charged, the possible defenses and mitigating circumstances that might be raised on his behalf, and the punishment involved. These factors are to be weighed along with background and experience of the accused in determining whether the accused has made an “intelligent” and “knowing” waiver of counsel.
The record in this case falls far short of demonstrating even a minimal examination necessary to assure the court of an understanding waiver of counsel by the accused. The “waiver” proceeding of February 3, 1969, is so brief I set it forth herein:
“MR. TRIMBLE (Assistant United States Attorney): Your Honor, this matter is here for arraignment. Mr. Warner is charged with violation of the internal revenue law. It does not appear that Mr. Warner has an attorney.
“THE COURT: Mr. Warner, do you have any funds ?
“DEFENDANT WARNER: Your Honor, I didn’t receive notice to come here until Friday afternoon, very late, in St. Augustine, Florida. And it was difficult to get here. I have not made *741any arrangements for an attorney. And really I feel I can defend myself in this matter. Would I be permitted to do so ?
“THE COURT: That is your privilege, but I don’t recommend it.
“DEFENDANT WARNER: I know. I have always heard that anyone who used himself for a lawyer had a fool for a lawyer.
“THE COURT: That is right.
“DEFENDANT WARNER: I do have income, a fairly good income, but I am very much in debt. I think I can make arrangements for an attorney.
“THE COURT: You know if you are guilty of this offense, you will be put away for a long time ?
“DEFENDANT WARNER: Yes, sir.
“THE COURT: If I were you, I would make every effort not to be put away. It is up to you.
“DEFENDANT WARNER: I certainly intend to.
“THE COURT: I will continue this thing until Monday, February 10th, and you have yourself a lawyer at that time.
“Can you hire a lawyer or not?
“DEFENDANT WARNER: Your Honor, isn’t it possible to handle it todáy? I have to drive back to St. Augustine and be back at work as soon as I can.
“THE COURT: If you want to waive the appointment of a lawyer, all right.
“Give him the form.
(The Clerk gives Defendant Warner a form.)
“THE COURT: Where are you living?
“DEFENDANT WARNER: St. Augustine, Florida.
“THE COURT: Where was this offense committed?
“MR. TRIMBLE: St. Louis, Your Honor.
“THE COURT: Well, I assume you want to enter a plea of not guilty. Is that right?
“DEFENDANT WARNER: That is correct, sir.
“THE COURT: All right. We will accept the plea of not guilty, and set this matter for trial on Monday, March 31st at ten o’clock.
“DEFENDANT WARNER: Thank you, sir.
“MR. TRIMBLE: Thank you, Your Honor.”
On April 1, 1969, the matter was set for trial. The accused appeared without a lawyer. On this occasion the court examined the accused and determined that he could not afford counsel. The following proceedings then took place:
“THE COURT: Well, as I recall, at the time this matter came up you advised the Court that you did not want a lawyer, is that correct ?
“DEFENDANT WARNER: Yes, sir. I couldn’t afford a lawyer, and I decided I would do better to represent myself.
“THE COURT: It is not a question of whether or not you can afford a lawyer. You know if you are not able to hire a lawyer, the Court will appoint one for you and I am certain I advised you of that on that day.
“DEFENDANT WARNER: Yes, sir, you did.
“THE COURT: As I recall, you told me you didn’t want a lawyer.
“DEFENDANT WARNER: That is true; yes, sir.
“THE COURT: Is that still the case?
“DEFENDANT WARNER: Yes, sir.
“THE COURT: You want to represent yourself in this matter ?
“DEFENDANT WARNER: Yes, sir.
“THE COURT: You have that privilege.
*742“MR. RUZICKA: I just thought, Your Honor, that the record should be perfectly clear so that we don’t have any problem later on about the fact that a lawyer was not appointed for him.
“THE COURT: You understand thoroughly that this Court will appoint you a lawyer if you don’t have the funds to employ one ?
“DEFENDANT WARNER: Yes, sir.
“THE COURT: You still don’t want a lawyer ?
“DEFENDANT WARNER: No, sir.
“THE COURT: You want to defend yourself?
“DEFENDANT WARNER: Yes, sir.
“THE COURT: All right. Fine. Let’s go. Bring the jury in.”
If the above proceedings are sufficient within the meaning of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), to assure the court of an “intelligent” waiver, then the only inquiry a trial judge need ever make is whether the indigent accused desires the government to furnish him a lawyer. If the accused answers “no,” that will suffice. I cannot believe this kind of cursory examination fulfills a trial judge’s obligation under the Constitution. See McGee v. United States, 355 U.S. 17, 78 S.Ct. 64, 2 L.Ed.2d 23 (1957).1
Even an educated and intelligent individual, unless he is trained in the law, has little understanding as to what a trial involves: the testing of an indictment, the skill in selecting a fair jury, the rules of procedure, the rules of evidence, the request for instructions, or the propriety of conduct. Such an individual lacks the capacity to prepare a defense, to cross-examine witnesses, and to make proper objections. He is literally “at sea” in the courtroom.
Such an observation does not mean that one cannot make a knowing and intelligent waiver' of counsel. However, if the accused does not demonstrate an ability to fully understand the complexity of the charge or the possible defenses involved, then the trial court should reject his waiver and appoint counsel. Cf. United States ex rel. Miner v. Erickson, supra (dissenting opinion). Such a determination can only be made by a searching and comprehensive inquiry of the accused by the court. If the court is *743convinced that an accused is an intelligent, educated individual who fully understands the charge, the elements of the offense, the overall benefits a lawyer can provide and the maximum punishment that may be involved, then and only then, should it be ready to accept waiver of counsel.
Until the majority of the Supreme Court chooses to make clear whether formal waiver of counsel is all that is needed, I shall continue to voice my disagreement as to waiver of counsel based upon abbreviated proceedings. See Von Moltke v. Gillies, 332 U.S. 708 at 724, 68 S.Ct. 316, 92 L.Ed. 309. Unless the trial court conducts a penetrating inquiry and examination of an accused and informs him of the nature and elements of the crime charged, as well as the value of counsel in defending his innocence, waiver of counsel cannot in my judgment be an “intelligent” act under the constitutional principles governing waiver, as discussed in Johnson v. Zerbst, supra, and Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Without fully understanding the right being waived, an accused is in actuality being denied his Sixth Amendment right to counsel.
As Mr. Justice Goldberg said in another context:
“No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights.” 2
When the law condones an accused’s hurried, formal waiver of the basic right and need to be represented by counsel in a criminal case, it acts in “fear” rather than human concern. I would reverse the judgment of conviction on the basis of the denial of due process under the Fifth Amendment and the denial of right to counsel under the Sixth Amendment.
. In McGee, the Supreme Court remanded to the district court for plenary hearing, inter alia, a claim that at the time counsel was “waived” the district court failed to inform the accused of possible defenses to the charge. The Supreme Court vacated the judgment of the Court of Appeals of the Seventh Circuit in United States v. McGee, 242 F.2d 520 (7 Cir. 1957).
As the Court of Appeals of the Tenth Circuit observed:
“The right to the assistance of counsel is one of substance and it is not satisfied by mere legalistic formality. * * * It is the duty of the trial judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the constitutional right at every stage of the proceedings. That protecting duty imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The fact that an accused may state that he is informed of his right to counsel and desires to waive such right does not automatically end the responsibility of the court.” Snell v. United States, 174 F.2d 580, 581-582 (10 Cir. 1949).
See e. g., United States ex rel. Ackerman v. Russell, 388 F.2d 21, 23 (3 Cir. 1968) ; Meadows v. Maxwell, 371 F.2d 664 (6 Cir. 1967) ; Shawan v. Cox, 350 F.2d 909 (10 Cir. 1965). And see the discussion and additional cases in United States ex rel. Miner v. Erickson, 428 F.2d 623 (8 Cir. 1970) (dissenting opinion).
. Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1764, 121 L.Ed.2d 977 (1964).