dissenting.
Beasley’s history of schizophrenia must have been known to the prosecution when Beasley rejected further assistance of counsel. At that time defense counsel advised the court, Judge O’Brien presiding, of the need for a mental examination. The advice fell on deaf ears.
There is no presumption of waiver of the constitutional right to counsel, and acceptance of such a waiver ought to be preceded by careful inquiry. Westbrook v. Arizona, 384 U. S. 150, 86 S. Ct. 1320, 16 L. Ed. 2d 429 (1966); Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A. L. R. 357 (1938); A. B. A. Standards Relating to Providing Defense Services, § 7.2, p. 62 (1958). The difficulty in a retrospective determination of capacity based on a belated mental examination was noted in Pate v. Robinson, 383 U. S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).
The majority opinion blinks at the neglect of inquiry when inquiry would have been fruitful. The record convinces us that Beasley’s constitutional right to counsel was violated.