dissenting.
The critical question presented on this appeal is whether a 17-year-old boy charged with armed robbery, a capital offense (Code § 18.1-91 [Repl. Vol. I960]), is entitled to counsel at a hearing in the Juvenile and Domestic Relations Court where he is certified to a criminal court for trial as an adult under Code § 16.1-176 [Repl. Vol. I960]. The majority opinion holds that he is not. Believing that the due process clauses of the Fourteenth Amendment to the Federal Constitution and Section 8 of the Constitution of Virginia guarantee such right, I dissent.
In my view, the recent decision of the Supreme Court of the *255United States in Application of Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. ed. 2d 527 (1967), and the earlier decision of Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. ed. 2d 84 (1966), clearly point to the conclusion that such a right is guaranteed to a juvenile under the due process clause of the Fourteenth Amendment.
The Juvenile Court Act of the District of Columbia provides:
“If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation,, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; * * 1
The material portion of our statute (Code § 16.1-176), dealing with the same subject, provides:
“(a) If a child fourteen years of age or over is charged with an offense which, if committed by an adult, could be punishable by confinement in the penitentiary the court after an investigation as prescribed in paragraph (b) of this section, and hearing thereon may, in its discretion, retain jurisdiction or certify such child for proper criminal proceedings to the appropriate court of record having criminal jurisdiction of such offenses if committed by an adult; * * * ”
It will be observed that the two statutes are substantially the same. While a proceeding under the District of Columbia statute is spoken of as a waiver proceeding, a proceeding under our statute is referred to as a certification proceeding.
In the Kent case the Supreme Court of the United States held that an order of the District of Columbia Juvenile Court waiving its jurisdiction over and transferring a 16-year-old boy for trial to a criminal court, without a hearing and without effective assistance of counsel was invalid and not permitted by the statute. 383 U. S. at 552, 553, 86 S. Ct. at 1053. In reaching that conclusion the Supreme Court expressly approved the holding in Black v. United States, 122 U.S. App. D. C. 393, 355 F. 2d 104 (1965), that a proceeding in the Dis*256trict Juvenile Court to determine whether the latter court should, after a full investigation, waive jurisdiction over a juvenile and transfer him to the criminal processes of the District Court was a “critically important” one and was invalid if the .juvenile was not advised of his right to either retained or appointed counsel. 383 U. S. at 560-562, 86 S. Ct. at 1057.
Furthermore, it was said in the Kent opinion: “ [Tjhere is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons;” 2 that “the waiver of jurisdiction is a ‘critically important’ action determining vitally important statutory rights of the juvenile.” 3 (Emphasis added.)
In Application of Gault, supra, the Supreme Court said of its holding in the Kent case: “Although our decision turned upon the language of the statute, we emphasized the necessity that ‘the basic requirements of due process and fairness’ be satisfied in such proceedingsthat this and other cases “unmistakably indicate that, whatever may be their precise impact, neither the Foitrteenth Amendment nor the Bill of Rights is for adults alone.” 387 U. S. at 12-13, 87 S. Ct. at 1436. (Emphasis added.)
Since a waiver proceeding under the District of Columbia statute is so similar to a certification proceeding under the Virginia statute, it is clear that what the Supreme Court of the United States has said about the constitutional requirements under the District of Columbia statute is equally applicable to our statute.
In the Gault case, which likewise dealt with the right to counsel in a hearing in a juvenile and domestic relations court, it was said: “We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parent must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” 387 U. S. at 41, 87 S. Ct. at 1451. (Emphasis added.)
It is true that in the Gault case the court was concerned with the validity of a judgment which had committed a child to an institution for a period of several years, while in the present case we are con*257cerned with the validity of an order which has certified a child to a criminal court to be tried as an adult. But under our statute the proceedings in the juvenile court “may result” in such commitment (Code, § 16.1-178) and hence are clearly within the purview of the holding in the Gault case.
Moreover, it would be most illogical to say in the present case that before this boy could lawfully be committed to the custody of juvenile authorities he should have had counsel, as is held in the Gault case, yet where the proceedings took a more serious turn and he was certified to a criminal court to be put on trial for his life, he was not entitled to counsel.
Nor do I agree with the view that even if the principles announced in the Gault opinion are applicable here, they “should be given only prospective effect.” Surely the Supreme Court of the United States and not this court is the tribunal which should decide whether its decision in the Gault case should be applied only prospectively. Certainly, without such limitation it must be construed to operate both retroactively and prospectively.
The majority opinion expresses the belief or hope that in the future the Supreme Court will indicate such limitation on its holding in the Gault case. Two years passed before it decided in Johnson v. State of New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. ed. 2d 882 (1966), that its holding in Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. ed. 2d 977 (1964), should not be applied retroactively. If we should wait for a similar limitation on the effect of the Gault decision, what is to become in the meantime of petitioner’s claim that he is being illegally detained under a void judgment?
In the present appeal the reasoning of the majority opinion seems to run thus: The precise issues decided in the Gault and Kent cases are not identical with those involved in the case before us and the principles there announced should not be applied here unless and until the mandate of the Supreme Court of the United States requires us to do so; in the meantime we should avoid their application by holding that the principles announced in those decisions should be applied only prospectively.
Such reasoning is contrary to my conception as to how the deci-' sions of the Supreme Court of the United States should be accepted and applied by the highest court in Virginia. Since the days of Chief Justice Marshall, the Supreme Court of Appeals of Virginia has recognized that the interpretation which the Supreme Court of the *258United States has placed upon the Federal Constitution is binding on state courts regardless of whether the latter courts approve of such interpretation.4 I think that when a fair reading of an opinion of the Supreme Court of the United States requires that the principles there announced be applied to a situation before us, we should apply them and not wait until we are forced to do so by the mandate of that court in that particular case.
It is my view that under the principles clearly laid down in the Gault and Kent cases, this 17-year-old boy whose case is now before us,, or his grandmother who stood in the relation of a parent to him, should have been notified of the boy’s right to be represented by counsel at the hearing before the juvenile court, and if they were unable to afford counsel, of his right to have counsel appointed to represent him. Because that was not done, the proceeding against the boy in the juvenile court was void for want of due process guaranteed to him under the Fourteenth Amendment, and the subsequent indictment and his conviction were void. Peyton v. French, 207 Va. 73, 80, 147 S. E. 2d 739, 743.
Furthermore, aside from the holdings in the Gault and Kent cases, I think that under the due process clause of the Virginia Bill of Rights (Constitution, § 8) this boy was entitled to counsel at the hearing in the juvenile court and should have been so notified. We have several times held that this section of the Virginia Constitution guarantees to an accused the right to counsel at his trial. Watkins v. Commonwealth, 174 Va. 518, 522, 6 S. E. 2d 670, 671; Fitzgerald v. Smyth, 194 Va. 681, 690, 74 S. E. 2d 810, 816; Morris v. Smyth, 202 Va. 832, 833, 120 S. E. 2d 465, 466.
In the present case this 17-year-old boy was charged with a capital offense. At the proceeding in the juvenile court it was to be determined whether he should be kept under the protection of the authorities charged with the care and custody of delinquent children or certified to the criminal court for trial as an adult. This was no mere preliminary hearing such as is accorded to an adult charged with the commission of a felony. Code § 19.1-163.1 [Repl. Vol. I960]. It was a jurisdictional requirement in the proceeding against this boy. Peyton v. French, supra, 207 Va. at 80, 147 S. E. 2d at 743. In the words of the Supreme Court in the Kent case (383 U. S. at 560, 86 S. Ct. at 1057), this was “indeed, a ‘critically important’ proceeding” and one in which he needed the guidance and assistance of counsel. *259I would reverse the judgment appealed from, grant the writ of habeas corpus, and remand the petitioner, who is now an adult, for a new trial in the manner prescribed in Peyton v. French, supra, 207 Va. at 80, 147 S. E. 2d at 743, 744.
D.C. Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965).
383 U. S. at 554, 86 S. Ct. at 1053.
383 U. S. at 556, 86 S. Ct. at 1055.
Martin v. Hunter's Lessee, 1 Wheat. 304, 14 U. S. 304, 4 L. ed. 97 (1816).