(dissenting) — On September 27, 1955, petitioner Klapproth (a minor, seventeen years of age) was charged with the crime of intentionally taking a motor vehicle without the permission of the owner, in violation of RCW 9.54.020. At his arraignment, as discussed hereinafter, petitioner was not represented by legal counsel. Upon his plea of guilty, the court found the petitioner “guilty as charged,” and sentenced him to punishment by confinement at the reformatory of the state of Washington for a maximum term of not more than twenty years.
In this habeas corpus proceeding, petitioner Klapproth is seeking to have his conviction set aside. In essence, he alleges violation of due process constitutional rights, contending that the trial court should have appointed legal counsel for him, because, when arraigned, he was (1) seventeen years of age, and (2) without the necessary funds to employ legal counsel.
*680The right to attack a judgment not void on its face on due process grounds has been recognized by this court. In re Wilken v. Squier, ante p. 58, 309 P. (2d) 746.
There is no statutory or constitutional provision which requires a trial court of this state to appoint legal counsel for a minor charged with a serious criminal offense solely because he is a minor. Nevertheless, in such instances, it seems to me that the better practice would be to appoint legal counsel.
The basic due process test in any given case is whether the accused has competently and intelligently waived counsel. In the case of In re Gensburg v. Smith, 35 Wn. (2d) 849, 215 P. (2d) 880, the court quoted from Gibbs v. Burke, 337 U. S. 773, 780, 93 L. Ed. 1686, 69 S. Ct. 1247, as follows:
“ ‘Our decisions have been that where the ignorance, youth, or other incapacity of the defendant made a trial without counsel unfair, the defendant is deprived of his liberty contrary to the Fourteenth Amendment. [Footnote: Uveges v. Pennsylvania, 335 U. S. 437, 441, and cases there cited.] Counsel necessary for his adequate defense would be lacking.’ ”
In the Gensburg case, the court further said:
“An accused person may waive his constitutional right to counsel, but this power of waiver, to be effective, must be exercised ‘competently and intelligently.’ Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357; Voigt v. Webb, 47 F. Supp. 743. In the Johnson case it was further held that one who asserts that the right to counsel was not competently and intelligently waived, has the burden of proof to establish that claim.”
See, also, Thorne v. Callahan, 39 Wn. (2d) 43, 234 P. (2d) 517.
In the case of State v. Baforo, 146 Wash. 312, 262 Pac. 964, the defendant (a minor) filed a motion in the trial court to withdraw a plea of guilty. The motion was denied, and this court affirmed, stating:
“The record of what took place, when the plea was entered, makes it perfectly apparent that the appellant, even though then only seventeen years of age, was fully aware of the plea that he was entering and of the consequences, even though not represented by counsel at that time.”
*681Under the circumstances indicated in the above-cited cases, the right to legal counsel may be waived by a minor without any violation’ of his due process constitutional rights.
In the instant case, there is a complete record of the arraignment proceedings. On the basis of this record, I am convinced that the trial court failed to advise the petitioner properly of his right to have the advice and assistance of legal counsel as prescribed by RCW 10.40.030, and guaranteed by Art. I, § 22, of the state constitution. The aforementioned statute provides:
“If the defendant appear without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and he shall be asked if he desire the aid of counsel, and if it appear that he is unable to employ counsel by reason of poverty, counsel shall be assigned to him by the court.”
When a defendant is brought before the court for arraignment, the above statute requires four specifics of the trial judge. He must (1) inform the defendant of his right to have the advice and assistance of legal counsel; (2) ask the defendant if he desires the aid of legal counsel; and, supplementing the foregoing, the trial judge must (3) inquire whether the defendant has funds with which to employ legal counsel, and (4) advise the defendant that, if he is without funds, legal counsel will be appointed by the court, at public expense, and at no expense to the defendant. This should be crystal clear from the decision of this court in In re Wilken v. Squier, supra; see, also: In re Pennington v. Smith, 35 Wn. (2d) 267, 212 P. (2d) 811; and Thorne v. Callahan, supra.
I believe the duty of the trial judge in connection with the foregoing specifics is not discharged, and the requirements of due process are not satisfied, by a casual and perfunctory, or merely ritualistic, performance. The principles involved are of real substance, basically significant to our way of life and to our concepts of justice, law, and order. They demand and require more than the once-over-lightly treatment. Furthermore, in Thorne v. Callahan, supra, we stated that, *682where the question presented in a habeas corpus proceeding is a claimed violation of due process constitutional rights, considerations relative to the guilt or innocence of an accused are not material in the resolution of the due process issue. See In re Wilken v. Squier, supra.
• Conceding that the arraignment proceedings in the instant case were continued four times, this does not in itself seem significant to me. The record shows the following colloquy between the court, the prosecutor, and the petitioner:
“The Court: You are charged with the crime of taking a motor vehicle without permission of owner. Have you an attorney? Mr. Klapproth: No. . . . [The information was read and a copy thereof served upon petitioner.] The Court: ... Do you have an attorney? Mr. Klap-proth: No, sir. The Court: How old are you? Mr. Klap-proth: 17. . . . The Court: Do you have any funds with which to employ an attorney? The Witness: My mother is supposed to have an attorney now. The Court: She lives here? Mr. Klapproth: Yes. The Court: Do you think your mother is going to get an attorney? Mr. Klap-proth: Yes. The Court: When did she tell you? Mr. Klapproth: Friday.” (Italics mine.)
After the foregoing, a continuance was granted apparently to allow the prosecutor to obtain a copy of the waiver of jurisdiction from the juvenile court, and to allow the petitioner to consult an attorney. On October 18, 1955, the cause came on again for hearing and the following ensued:
“Mr. Callow: May the record show this is the matter of State vs. John W. Klapproth on a charge of taking a motor vehicle without permission, No. 29541. The defendant is here in court and is not represented by counsel.
“The Defendant: I have talked to my folks, and I have decided not to have counsel. . . . The Court: On October 11, Mr. Klapproth, you advised the court that you were procuring your own attorney. The Defendant: Yes, sir. The Court: You have decided against that? The Defendant: Yes, sir. The Court: And you do not wish the court to appoint an attorney to represent you? The Defendant: No, sir. The Court: Beg pardon? The Defendant: No, sir. I’d rather not have one. The Court: You have given this matter full consideration, have you? The Defendant: Yes, sir.” (Italics mine.)
*683Thus, the italicized portion of the above-quoted record is as close as the trial court came to advising petitioner of his statutory and constitutional rights relative to obtaining the advice and counsel of an attorney. This falls short of the mandatory requirements set out and emphasized above.
The trial court complied neither in form nor in substance with the above-mentioned four specifics concerning the rights of an accused to legal advice and counsel. Under the circumstances, I am convinced (1) that there was no intelligent and understanding waiver of legal counsel, (2) that the judgment and sentence should be vacated, and (3) that the petitioner should be remanded to the custody of the sheriff of King county for rearraignment and further proceedings in accordance with the views expressed herein.
For the reasons indicated hereinabove, I dissent.
Rosellini, J., concurs with Finley, J.
September 24, 1957. Petition for rehearing denied.