(dissenting):
I respectfully dissent.
This involves a capital crime. Under the existing record and federal constitutional standards the defendant did not make an intelligent and knowing waiver of counsel at the time of his guilty plea. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The defendant was a 21 year old Mexican youth with a ninth grade education. He was charged with the crimes of first and second degree murder. At the time of Salazar’s plea, the county attorney bargained with him, without presence of counsel, to dismiss the charge of first degree murder in return for a guilty plea to second degree murder. This fact was not disclosed to the state trial court. The state stood mute when the court asked the defendant whether any promise had been made which induced his plea.1
At the time the defendant allegedly “waived” counsel, the record is clear that the trial court did not: (1) explain the nature of the charges; (2) make a searching inquiry as to whether the defendant understood the nature of the charges; (3) determine whether there was a factual basis for the plea of guilty; or (4) explain in any way the possible defenses or mitigating circumstances that would be available under the facts.2
The record is patently deficient in showing any penetrating or comprehensive discussion between the court and the accused. The accused had no prior experience in criminal courts or criminal procedure. His post-conviction statement made in the federal district court substantially corresponds with his pretrial statement to the county attorney. He awoke in a hotel room after a drinking spree with the deceased and found the decedent stealing his clothes and money. The decedent attacked him with a knife. They had a fight in which both parties were cut. The petitioner hit the victim over the head with a bottle, left him unconscious, allegedly not realizing that mortal wounds had been inflicted. *839The state trial judge’s apprehension of a “brutal crime” is not justified on this record.
Acceptance of continued emphasis upon technical waiver of counsel from an accused simply because he is informed of his right to counsel and he repeatedly rejects the assistance of counsel is abhorrent to constitutional principles. See discussion and cases set forth in the dissenting opinions in United States ex rel. Miner v. Erickson, 428 F.2d 623, 631 (8 Cir. 1970) (Lay, J., dissenting); United States v. Warner, 428 F.2d 730, 740 (8 Cir. 1970) (Lay, J., dissenting). Constitutional waiver of counsel requires more than this. Von Moltke v. Giles, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
The corollary to what I shall call the “doctrine of technical waiver” seems to be the refuge that a court cannot force counsel on an accused. I repeat my observation in Miner, supra:
“The legal recognition that the Constitution ‘does not require under all circumstances counsel be forced upon a defendant’ does not serve as justification for an inadequate waiver. The court’s responsibility must go beyond a mere recommendation of counsel when the record clearly demonstrates an accused’s lack of capacity to understand the complexities of a charge and the existing defenses to it.” 428 F.2d at 636.
As pointed out in Miner, Mr. Justice Frankfurter qualified his statement that the “Constitution does not force a lawyer upon a defendant”: before waiver is accepted the accused must know “what he is doing and his choice [must be] made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).
A writ of habeas corpus should be granted to afford the petitioner, now sentenced to life in prison, a new trial with adequate representation by counsel.
. I have previously discussed how this constitutes fraud on the court and should not be condoned under any circumstances. See Meyer v. United States, 424 F.2d 1181, 1193 (8 Cir. 1970) (dissenting opinion).
. The federal district court in denying the petition for a writ of habeas corpus emphasizes Burch v. United States, 359 F.2d 69 (8 Cir. 1966) and Michener v. United States, 181 F.2d 911, 918 (8 Cir. 1950), where this court observed: “And upon finding a competent, intelligent and intentional waiver of counsel, it is not then any the more the duty of the trial judge to advise an accused respecting possible defenses.” 181 F.2d at 918. (My emphasis.)
As I observed in Miner, infra, this places the cart before the horse. The Michener statement should be openly rejected as establishing a patently erroneous constitutional standard of waiver. Implicit in the inquiry as to a “competent, intelligent and intentional waiver” is whether the accused understands possible defenses which counsel might make on his behalf. One cannot make a valid waiver without the proper ingredients of inquiry which serve to determine the waiver. To find that waiver of counsel exists and then say that after it exists there is no duty to advise an accused respecting possible defenses is a contradiction I do not understand. Cf. McGee v. United States, 355 U.S. 17, 78 S.Ct. 64, 2 L.Ed.2d 23 (1957), reversing United States v. McGee, 242 F.2d 520 (7 Cir. 1957). See also the discussion in United States v. Warner, 428 F.2d 730, 742 n. 1 (8 Cir. 1970) (dissenting opinion).