dissenting. I am unable to find that the sentencing court had any greater jurisdictional authority to deal with the misdemeanor offenses than with the felony charges. The present application concerns us with the right to counsel guaranteed by the Federal and State Constitutions. The right is fundamental and its observance is essential to the demands of due process and a fair trial. This means that counsel must be provided for defendants in need of competent legal advice unless the right is competently and in*143telligently relinquished by the defendant. Gideon v. Wainwright, 372 U. S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799.
“The protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to Counsel, whether there is a proper waiver should be clearly determined by the trial court and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, 304 U. S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.
The record unfolded by the present petition shows the defendant remained silent, save for informing the court, in answer to inquiry, that his father was present in court, and that he, the respondent, understood the nature of the charges to which he was called upon to plead.
All of the court’s comments and inquiries concerning the right to counsel were addressed to the accused’s father. He alone responded to them. And only he, as guardian ad litem, entered the several pleas of guilty.
The instructions concerning the right to counsel were not specifically directed to either the respondent or his father. The advice in this respect was vicariously given by way of reference to what had previously been stated to the parent of a co-defendant: “Mr. Mears, you heard me explain your rights to Mr. Wright and you know you have the right to have counsel. Are you in a position to pay for it ?” To this, the guardian ad litem answered the court: “We do not wish to have counsel.” Whereupon, pleas of guilty were announced by the father.
I regard the constitutional right to counsel as personal to the person entitled to its benefit. By the same token it can be waived only by the person who will bear the risk of foregoing its advantage. Here the respondent remained mute.
Silence alone will never constitute a waiver. When it is in derogation of an important right, it will not be inferred from doubtful conduct. Dunbar v. Farnham, 109 Vt. 313, 322, 196 Atl. 237, 114 A.L.R. 996. When the constitutional right to competent legal assist*144anee is at stake, any presumption of waiver from a silent record is unpermissible. Upon this question, the record must affirmatively show the accused himself was offered legal counsel but he intelligently and understaridingly rejected the offer. Anything short of this will not constitute a waiver. Carnley v. Cochran, 369 U. S. 506, 515, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst, supra, 304 U. S. at 464.
The majority opinion constructs a waiver of the respondent’s right to counsel through the voice of a guardian ad litem who was informed only that his charge was entitled to be represented by an attorney. The authority of such a guardian to waive substantial rights of his ward are carefully restricted in civil causes. Keeler v. Fassett, 21 Vt. 539, 543; Bank of United States v. Ritchie, 8 Pet. (U. S.) 128, 8 L.Ed. 890, 897; White v. Joyce, 158 U. S. 128, 15 S.Ct. 788, 39 L.Ed. 921, 927; 27 Am. Jur. Infants §129, p. 848; 43 C.J.S. Infants §111 (d) p. 308.
In criminal proceedings against a minor, where the consequences are more serious, the safeguards should afford equivalent protection. The problem is one of first impression with us. It was pointed out in Reppin v. People, 95 Colo. 192, 210, 34 P.2d 71, 79, that important rights of a minor cannot be waived by either guardian ad litem or attorney in civil proceedings and ,the law would be remiss if any standard less than this prevailed in criminal causes. See also McBride v. Jacobs, 101 U. S. App. D.C. 189, 247 F.2d 595, 596; People v. Hardin (Calif.). 207 C.A.2d 336, 24 Cal. Rptr. 563; 42 C.J.S. Infants, §96, p. 214; annotation 71 A.L.R.2d 1196.
The real import of the majority opinion is that authority of the guardian to waive the minor’s right to counsel is derived from 33 V.S.A. §678. This construction, to my mind, operates beyond the letter and against the spirit of the enactment. I find in the statute the legislative purpose to protect the youthful offender from standing alone and unbefriended in court when summoned there to answer for any offense. In addition, there is a mandate that he be represented by counsel in felony prosecutions. But this does not mean that his individual right to be represented by counsel in other causes was delegated to his guardian, to be waived at the election of his adviser. If such is the force and effect of the statute, serious constitutional considerations stand in its way.
*145Since our decision in the Moses case, the law has changed by force of statute and judicial decision. The distinction between capital and non-capital offenses, for the purpose of determining the right to counsel, has been erased. Betts v. Brady, 316 U. S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, which previously observed the difference, has been overruled by Gideon v. Wainwright, supra, 372 U. S. at 339. Within our state jurisdiction, in addition to requiring guardians ad litem for infant respondents, and counsel in felonies, the legislature has removed the categorical difference between crimes punishable in State Prison and the House of Correction by providing counsel for indigent defendants where the crime charge is punishable by imprisonment for six months or more, without regard to whether the offense is a felony or misdemeanor. 13 V.S.A. §6503 (1963). ■
This statute is kindred in design and purpose to 13 V.S.A. §678. The two enactments should be construed together to achieve their common purpose of affording cotmsel to .youthful and indigent defendants who are subject to confinement for serious offenses. Confinement in a penal institution for a period of one to three years is serious regardless of the place of confinement or whether it be classified as a felony or a misdemeanor. In this instance, it is clear that the sentencing court regarded the misdemeanor of equal gravity with the felony count for it imposed equivalent sanctions.
Mr. Justice Clark has stressed this point. “The 14th Amendment requires due process of law for the deprival of ‘liberty’ just as for the deprival of ‘life,’ and there cannot constitutionally be a difference in the sanction involved.” Gideon v. Wainwright, supra, 372 U. S. at 349 (concurring opinion).
Also, Mr. Justice Harlan, concurring in Gideon, points out, “The special circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be similarly abandoned in non-capital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial prison sentence.” 372 U. S. at 351.
The prisoner did not personally waive his right to counsel. And I am not persuaded that his guardian ad litem could legally do it for him. He had neither legal capacity nor legal knowledge to competently and intelligently relinquish this fundamental right without the minor’s affirmative and understanding consent. These essentials *146do not appear. Without them due process is not achieved. Carnley v. Cochran, supra, 369 U. S. at 515.