Bruñe, C. J.,
delivered the opinion of the Court.
The appellant, Hill, when arraigned in the trial court, was not represented by counsel. He pleaded guilty to a narcotics-law violation, admitted a prior conviction of a similar offense, and was sentenced as a second offender to the maximum authorized prison term, which is ten years. This appeal (in which he is represented by court-appointed counsel) is from the judgment and sentence.
The indictment was in four counts. The first two counts, charged, respectively, possession and control of a narcotic drug in the City of Baltimore on November 8th, 1957. The third and fourth counts of the indictment, as found by the grand jury, each alleged conviction of a prior narcotics offense in the District of Columbia on October 16th, 1953, and charged, respectively, the current offenses of possession and control on November 8th, 1957.
The record shows that the defendant was served with a copy of the indictment on the day on which it was filed, that this was two days before his arraignment, and that he stated at the arraignment that he had received a copy. (See Rule 723 a, which is similar to Rule 10 of the Federal Rules of Criminal Procedure.) The clerk then asked him “Do you have a lawyer?” The defendant replied “No, I don’t.” The clerk next asked “What is your age?” and the defendant replied “35.” The clerk then proceeded to state the substance of the first two counts, which charged the current offense, and asked the defendant “[H]ow do you plead, guilty or not guilty?” The defendant answered “Guilty as charged.” Then followed a statement by the clerk as to the third and fourth counts, in which he doubtless unintentionally, but nonetheless erroneously, stated the date of the alleged prior conviction as that of the current offense. The judge then [122]*122inquired whether the date of the alleged prior conviction stated by the clerk was correct. The defendant replied that it was not and in answer to a further question said that it had been in 1953. The State then sought leave to amend, to which the accused expressed his consent. Thereupon the court directed the clerk to make the amendment by interlineation, and the latter proceeded to do so, and mistakenly changed the date of the current offense from 1957 to 1953. The record shows no formal plea to the third or fourth counts.
The appellant contends: that the failure of the trial court to advise him of his right to obtain counsel was a violation of the first sentence of Rule 723 b of the Maryland Rules; that errors and omissions in the proceedings, including the failure of the trial court so to advise him, deprived him of his liberty in violation of the Federal and State Constitutions; that there is no showing of any election-—certainly of no informed election—to proceed without counsel, and that he was entitled under the second sentence of Rule 723 b relating to “capital * * * or other serious cases” to have counsel appointed for him if (as he asserts) he was indigent. He further claims that the lack of counsel in this case did involve such an element of unfairness in bringing about his confinement as to constitute a denial of due process of law in violation of both the Federal and State Constitutions. He also urges that failure of the trial court to advise the defendant of the consequences of a plea of guilty invalidates the proceedings; and finally, that the proceedings would not in any event support a sentence as a second offender.
We think that the judgment and sentence must be reversed for non-compliance with Rule 723 b and c, relating to arraignments, which read as follows:
“b. Assignment of Counsel.
If the defendant appears in court without counsel, the court shall advise him of his right to obtain counsel. Unless he elects to proceed without counsel, the court shall, in all capital cases or other serious cases, assign counsel to defend him.
[123]*123“c. Record to Show Compliance.
The record shall affirmatively show compliance with this Rule.”
The record fails to show affirmatively, as required by Rule 723 c, that Rule 723 b was complied with; on the contrary, it seems to show that it was not. This is a direct appeal, not a habeas corpus case. Hence cases of the latter type, in which it has been held that the burden is on the petitioner, in order to establish lack of jurisdiction of the court in which he was tried, to show that as a result of his not being represented by counsel, some element of unfairness operated actively in the process which resulted in his confinement, are not applicable. (See, for example, Truelove v. Warden, 207 Md. 636, 115 A. 2d 297; Shaffer v. Warden, 211 Md. 635, 126 A. 2d 573; Meleganich v. Warden, 213 Md. 648, 132 A. 2d 130.)
There is an extensive annotation on the duty to advise an accused as to the right to the assistance of counsel in 3 A. L. R. 2d 1003. Since the decisions in Johnson v. Zerbst, 304 U. S. 458, Walker v. Johnston, 312 U. S. 275, and Glasser v. United States, 315 U. S. 60, construing the Sixth Amendment to the Federal Constitution, the rule with regard to the right to counsel of a defendant in a criminal prosecution in a Federal court is as it is now succinctly stated in Rule 44 of the Federal Rules of Criminal Procedure. This Rule, which the Advisory Committee commented was “a restatement of existing law”, reads as follows: “If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.”
As Judge Hammond pointed out in Truelove v. Warden, supra, 207 Md. 636, 638, 115 A. 2d 297, with regard to state prosecutions: “As a fundamental matter, it is well settled that the Federal Constitution does not compel a state to furnish counsel as a matter of right, as is required by the Sixth Amendment in federal prosecutions; that the ‘Lack of counsel at state non-capital trials denies federal constitutional [124]*124protection only when the absence results in a denial to accused of the essentials of justice.’ Gallegos v. Nebraska, 342 U. S. 55 [at 64].” The above passage was quoted in Shaffer v. Warden, 211 Md. 635, 637, 126 A. 2d 573, and the Shaffer-case was also cited in Meleganich v. Warden, 213 Md. 648, 651, 132 A. 2d 130, both of which cases are relied upon by the State in the present case. See also Betts v. Brady, 316 U. S. 455, and Bute v. Illinois, 333 U.S. 640.
In Betts v.
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Bruñe, C. J.,
delivered the opinion of the Court.
The appellant, Hill, when arraigned in the trial court, was not represented by counsel. He pleaded guilty to a narcotics-law violation, admitted a prior conviction of a similar offense, and was sentenced as a second offender to the maximum authorized prison term, which is ten years. This appeal (in which he is represented by court-appointed counsel) is from the judgment and sentence.
The indictment was in four counts. The first two counts, charged, respectively, possession and control of a narcotic drug in the City of Baltimore on November 8th, 1957. The third and fourth counts of the indictment, as found by the grand jury, each alleged conviction of a prior narcotics offense in the District of Columbia on October 16th, 1953, and charged, respectively, the current offenses of possession and control on November 8th, 1957.
The record shows that the defendant was served with a copy of the indictment on the day on which it was filed, that this was two days before his arraignment, and that he stated at the arraignment that he had received a copy. (See Rule 723 a, which is similar to Rule 10 of the Federal Rules of Criminal Procedure.) The clerk then asked him “Do you have a lawyer?” The defendant replied “No, I don’t.” The clerk next asked “What is your age?” and the defendant replied “35.” The clerk then proceeded to state the substance of the first two counts, which charged the current offense, and asked the defendant “[H]ow do you plead, guilty or not guilty?” The defendant answered “Guilty as charged.” Then followed a statement by the clerk as to the third and fourth counts, in which he doubtless unintentionally, but nonetheless erroneously, stated the date of the alleged prior conviction as that of the current offense. The judge then [122]*122inquired whether the date of the alleged prior conviction stated by the clerk was correct. The defendant replied that it was not and in answer to a further question said that it had been in 1953. The State then sought leave to amend, to which the accused expressed his consent. Thereupon the court directed the clerk to make the amendment by interlineation, and the latter proceeded to do so, and mistakenly changed the date of the current offense from 1957 to 1953. The record shows no formal plea to the third or fourth counts.
The appellant contends: that the failure of the trial court to advise him of his right to obtain counsel was a violation of the first sentence of Rule 723 b of the Maryland Rules; that errors and omissions in the proceedings, including the failure of the trial court so to advise him, deprived him of his liberty in violation of the Federal and State Constitutions; that there is no showing of any election-—certainly of no informed election—to proceed without counsel, and that he was entitled under the second sentence of Rule 723 b relating to “capital * * * or other serious cases” to have counsel appointed for him if (as he asserts) he was indigent. He further claims that the lack of counsel in this case did involve such an element of unfairness in bringing about his confinement as to constitute a denial of due process of law in violation of both the Federal and State Constitutions. He also urges that failure of the trial court to advise the defendant of the consequences of a plea of guilty invalidates the proceedings; and finally, that the proceedings would not in any event support a sentence as a second offender.
We think that the judgment and sentence must be reversed for non-compliance with Rule 723 b and c, relating to arraignments, which read as follows:
“b. Assignment of Counsel.
If the defendant appears in court without counsel, the court shall advise him of his right to obtain counsel. Unless he elects to proceed without counsel, the court shall, in all capital cases or other serious cases, assign counsel to defend him.
[123]*123“c. Record to Show Compliance.
The record shall affirmatively show compliance with this Rule.”
The record fails to show affirmatively, as required by Rule 723 c, that Rule 723 b was complied with; on the contrary, it seems to show that it was not. This is a direct appeal, not a habeas corpus case. Hence cases of the latter type, in which it has been held that the burden is on the petitioner, in order to establish lack of jurisdiction of the court in which he was tried, to show that as a result of his not being represented by counsel, some element of unfairness operated actively in the process which resulted in his confinement, are not applicable. (See, for example, Truelove v. Warden, 207 Md. 636, 115 A. 2d 297; Shaffer v. Warden, 211 Md. 635, 126 A. 2d 573; Meleganich v. Warden, 213 Md. 648, 132 A. 2d 130.)
There is an extensive annotation on the duty to advise an accused as to the right to the assistance of counsel in 3 A. L. R. 2d 1003. Since the decisions in Johnson v. Zerbst, 304 U. S. 458, Walker v. Johnston, 312 U. S. 275, and Glasser v. United States, 315 U. S. 60, construing the Sixth Amendment to the Federal Constitution, the rule with regard to the right to counsel of a defendant in a criminal prosecution in a Federal court is as it is now succinctly stated in Rule 44 of the Federal Rules of Criminal Procedure. This Rule, which the Advisory Committee commented was “a restatement of existing law”, reads as follows: “If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.”
As Judge Hammond pointed out in Truelove v. Warden, supra, 207 Md. 636, 638, 115 A. 2d 297, with regard to state prosecutions: “As a fundamental matter, it is well settled that the Federal Constitution does not compel a state to furnish counsel as a matter of right, as is required by the Sixth Amendment in federal prosecutions; that the ‘Lack of counsel at state non-capital trials denies federal constitutional [124]*124protection only when the absence results in a denial to accused of the essentials of justice.’ Gallegos v. Nebraska, 342 U. S. 55 [at 64].” The above passage was quoted in Shaffer v. Warden, 211 Md. 635, 637, 126 A. 2d 573, and the Shaffer-case was also cited in Meleganich v. Warden, 213 Md. 648, 651, 132 A. 2d 130, both of which cases are relied upon by the State in the present case. See also Betts v. Brady, 316 U. S. 455, and Bute v. Illinois, 333 U.S. 640.
In Betts v. Brady, supra, Coates v. State, 180 Md. 502, 25 A. 2d 676, then recently decided, was referred to. In the Coates case this Court held, in an opinion written by Chief Judge Bond (whose denial of the petition for a writ of' habeas corpus in Betts v. Brady was reviewed and affirmed),, that “counsel should have been appointed [for the accused] as an essential of due process of law.” That was not a capital', case; it involved six indictments for robbery, one for assault with intent to rob and two burglary cases. Also, the defendant pleaded guilty in two of the robbery cases, in the-case of assault with intent to rob and in one of the burglary cases. He was tried before the court without a jury in the 'other cases, was convicted in each, and was sentenced to a term of ten years in each case, such terms to run consecur tively, making a total of ninety years. The judgments in aík nine cases, including those in which the accused had pleaded, guilty were reversed, motions to strike the sentences were granted and new trials were awarded.
The resemblances and the differences between Rule 44 of the Federal Rules of Criminal Procedure and our Rule 723 bare apparent. Each applies if the defendant appears in court without counsel, and each contains a requirement that the ■ court advise the defendant as to his right to counsel. Each-. Rule permits waiver of the right to counsel, and the Federal Rule also expressly dispenses with the need to appoint counsel if the defendant is able to obtain counsel. The Rules differ • in that the Federal Rule (with the exceptions noted) requires that counsel be assigned in all cases, regardless of the nature or seriousness of the offense or penalty, but the Maryland Rule (apart from waiver and possibly an implied exception if the defendant can obtain counsel) requires the-[125]*125assignment of counsel only “in capital cases or other serious cases.” This difference seems to be founded upon the difference between the Supreme Court’s interpretation of the Sixth Amendment to the Federal Constitution and this Court’s interpretation of the provision of Article 21 of the Maryland Declaration of Rights, which states the right of a person accused of crime “to be allowed counsel.” See Raymond v. State ex rel. Szydlouski, 192 Md. 602, 65 A. 2d 285, in which Judge Delaplaine thoroughly reviewed the historical background of that Article.
However, in the Raymond case just cited, though failure to appoint counsel for an eighteen-year-old defendant, who was charged with carrying a concealed weapon and with burglary, was held not to be a violation of Article 21 of the Maryland Declaration of Rights, it was held to be a violation of the due process clause of the Fourteenth Amendment.
In Jewett v. State, 190 Md. 289, 58 A. 2d 236, the procedural situation was so unusual as to be described as sui generis.1 The important thing for the purposes of this case and the interpretation of Rule 723 b is that the Court, in an opinion by Judge Markell, said (190 Md. at 296-297, 58 A. 2d 236): “We cannot say that mere failure to appoint counsel, without request, or to ask whether appellant desired such appointment was, apart from other circumstances, a denial of due process. Without attempting to trace the tenuous line between what does and what does not constitute due process in this respect, we may say that we think the wise practice, in any serious case, is to appoint counsel unless the accused intelligently waives such appointment in response to [a] question whether he desires it.”
Both the Jewett case and the Coates case are referred to in the Reporter’s Notes appended to the Fifth Report of the Rules Committee dated October 3, 1949, in connection with subsections (b) and (c) of what then became, upon adoption, [126]*126Rule 1 of the Rules of Criminal Practice and Procedure. That Rule now constitutes Rule 723, without any change other than renumbering. It may be noted that what is now Rule 723 b follows to a considerable extent a draft proposed under date of September 23, 1948, by the Committee on Civil and Criminal Procedure of the Bar Association of Baltimore City, a copy of which is also appended to the Committee Report of October 3, 1949.
Rule 723 b adopts almost verbatim the suggestion made in the Jewett case which is quoted above. It may be added that in so doing it uses the phrase “capital cases or other serious cases,” which appears in the Jewett case, rather than the language “a capital crime or other extremely serious crime,” (italics supplied) which will be found in the Coates case (180 Md. 509), where the court was considering in what cases the appointment of counsel might be necessary in order to comply with due process under the Fourteenth Amendment. The Rules Committee’s preliminary draft of Rule 1 b (see the the Daily Record, May 31, 1948) used the phrase “in all capital cases or other very serious cases.” (Italics ours.)
The Rules Committee’s preliminary draft of Criminal Rule 1 contained no equivalent of what is now Rule 723 c. It is broader in terms and easier of compliance than a provision suggested by the Baltimore Bar Association Committee for inclusion in Rule 1 b that the court should determine of record that the accused had “intelligently elected to proceed without counsel.”
As the annotation in 3 A. L. R. 2d, above referred to, shows, a few states have taken the view that in the absence of special circumstances which would result in a denial of due process-under the Fourteenth Amendment, there is no duty under their constitutions or statutes to advise a defendant of his right to be represented by counsel (p. 1061), and a few hold that there is no duty so to advise a .defendant in a non-capital case (p. 1066). A considerably greater number of states— some under constitutional or statutory provisions—hold that there is a duty so to advise a defendant (p. 1036). Some states infer a waiver from the defendant’s failure to request [127]*127counsel (p. 1070) and others do so from a plea of guilty (p. 1073).
Our Rules of Practice and Procedure have the force of law, until rescinded, changed or modified by this Court or otherwise by law. Md. Const., Art. IV, Sec. 18A. We think that the provision of Rule 723 b that the court shall advise a defendant who appears for arraignment without counsel of his right to obtain counsel is both clear and obligatory. We also think it clear that in the present case there was neither exact nor substantial compliance with its terms or with the terms of Rule 723 c. The latter subsection also precludes, at least on such a record as the present, any inference of a waiver of compliance with Rule 723 b on the basis of a failure to ask for the appointment of counsel or on the basis of a plea of guilty.
On remand the trial court will undoubtedly give consideration to the nature of the offense charged and the possible penalty in determining whether or not it should be regarded as a serious offense within the meaning of the second sentence of Rule 723 b.
The above conclusion makes it unnecessary to decide the other questions suggested.
Judgment and sentence reversed and case remanded for a new trial.