Souris, J.
(for reversal and remand for new trial).
In March of 1963, defendant was convicted, on his plea of guilty, of armed robbery and was sentenced to imprisonment for 12-1/2 to 25 years. Two years later we granted defendant’s application for leave to appeal his conviction and ordered that the appeal be presented directly to this Court.
The record of defendant’s arraignment on the information discloses that the trial judge advised defendant of his right to a jury trial and of his right to be represented by an attorney of his own choice or, upon request, by an attorney appointed by the court if defendant had no money to employ one. Unfortunately, the trial judge did not ask the defendant whether he wanted an opportunity to retain his own attorney or, if indigent, that an attorney be appointed for him. Instead, the trial judge asked defendant to plead, interrogated him briefly on his plea of guilty, accepted the plea and pronounced judgment of guilt thereon.
Absent record proof of offer and waiver of counsel, we must reverse and remand for new trial, defendant having been denied his right to the [11] assistance of counsel in Ms defense. Sixth and Fourteenth Amendments to the United States Constitution and article 2, § 19, Constitution of 1908 (currently article 1, § 20, Constitution of 1963).
On the very day this defendant stood before the bar of justice in the Grand Rapids superior court, March 18, 1963, the United States Supreme Court decided Gideon v. Wainwright, 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733). In Gideon the Supreme Court held that the Sixth Amendment’s guarantee of the assistance of counsel in all criminal prosecutions is a right so fundamental and essential to a fair trial, and so, to due process of law, that it is applicable to the States by virtue of the due process clause of the Fourteenth Amendment and, further, that counsel must be provided a defendant, at least one charged with a felony, who wants such assistance but who is unable to employ counsel. While it is our belief that defendant Parshay would be entitled to invoke Gideon on this appeal even if Gideon were to be given only prospective effect, defendant’s conviction having occurred on the same day as the decision in Gideon, the effective date of the right declared in Gideon is no longer an issue, Gideon having been held to apply retroactively. Pickelsimer v. Wainwright (1963), 375 US 2 (84 S Ct 80, 11 L ed 2d 41); Doughty v. Maxwell (1964), 376 US 202 (84 S Ct 702, 11 L ed 2d 650); Arthur v. Colorado (1965), 380 US 250 (85 S Ct 943, 13 L ed 2d 818); and Linkletter v. Walker (1965), 381 US 618, at 628 (85 S Ct 1731, 14 L ed 2d 601). Thus, whether defendant Parshay was denied the assistance of counsel upon his felony conviction is an issue of Federal constitutional magnitude which he is entitled to assert in this appeal.
However, even before Gideon, this Court required, by rule adopted in 1947, that in every felony prose[12] cntion tbe accused be advised of Ms right to have the assistance of counsel and, if financially unable to employ counsel, that counsel be appointed for him upon his request. See Court Rules (1945), No 35a and, currently, GCR 1963, 785.3. Whatever the nature of the right, constitutional or rule, defendant Parshay, accused of a felony, was entitled to be represented at his arraignment by an attorney, either one employed by. him or, if he was unable financially to employ an attorney of his own choosing, by an attorney appointed by the court. This right the trial judge clearly recognized and advised defendant he possessed.
The entire record of defendant’s arraignment on the information is set forth in the margin. 2 It clearly appears from that record that the t,rial judge [13] advised Parshay of Ms rights to a jury trial and to the assistance of counsel. But, the record also discloses unequivocally that defendant was not given [14] an opportunity to assert those rights. The pertinent part of the record follows:
[15] “The Court. I want to advise you that you are entitled to a jury trial to have it determined whether you are guilty or not guilty, do you understand that?
“(Respondent nods head up and down.)
“The Court. You understand?
“The Respondent. Yeah, yeah.
“The Court. And also that you are entitled to he represented by an attorney in this matter, that is, an attorney of your own choice. If you have no money to employ an attorney, if you so request, I will appoint an attorney to represent you. Do you understand that?
“(Respondent nods head up and down.)
“The Court. Your answer is yes?
“The Respondent. Yes.
“The Court. Knowing what the charge is in the first count in the information, knowing what your rights are as I explained them to you, are you prepared to enter a plea of guilty or not guilty?
“The Respondent. Guilty.”
Whatever may have been defendant’s actual comprehension of the rights stated by the trial judge to be his, he was required to plead to the charge against him without having been given an opportunity to demand a jury trial, to consult with an attorney of his own choosing, or to request that one be appointed for him, before being called upon by the judge to enter his plea.
In March of 1963, when defendant was arraigned, GCR 1963, 785.3(1) read as follows:
“(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states ho will procure counsel or requests, that counsel be [16] appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.”
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Souris, J.
(for reversal and remand for new trial).
In March of 1963, defendant was convicted, on his plea of guilty, of armed robbery and was sentenced to imprisonment for 12-1/2 to 25 years. Two years later we granted defendant’s application for leave to appeal his conviction and ordered that the appeal be presented directly to this Court.
The record of defendant’s arraignment on the information discloses that the trial judge advised defendant of his right to a jury trial and of his right to be represented by an attorney of his own choice or, upon request, by an attorney appointed by the court if defendant had no money to employ one. Unfortunately, the trial judge did not ask the defendant whether he wanted an opportunity to retain his own attorney or, if indigent, that an attorney be appointed for him. Instead, the trial judge asked defendant to plead, interrogated him briefly on his plea of guilty, accepted the plea and pronounced judgment of guilt thereon.
Absent record proof of offer and waiver of counsel, we must reverse and remand for new trial, defendant having been denied his right to the [11] assistance of counsel in Ms defense. Sixth and Fourteenth Amendments to the United States Constitution and article 2, § 19, Constitution of 1908 (currently article 1, § 20, Constitution of 1963).
On the very day this defendant stood before the bar of justice in the Grand Rapids superior court, March 18, 1963, the United States Supreme Court decided Gideon v. Wainwright, 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733). In Gideon the Supreme Court held that the Sixth Amendment’s guarantee of the assistance of counsel in all criminal prosecutions is a right so fundamental and essential to a fair trial, and so, to due process of law, that it is applicable to the States by virtue of the due process clause of the Fourteenth Amendment and, further, that counsel must be provided a defendant, at least one charged with a felony, who wants such assistance but who is unable to employ counsel. While it is our belief that defendant Parshay would be entitled to invoke Gideon on this appeal even if Gideon were to be given only prospective effect, defendant’s conviction having occurred on the same day as the decision in Gideon, the effective date of the right declared in Gideon is no longer an issue, Gideon having been held to apply retroactively. Pickelsimer v. Wainwright (1963), 375 US 2 (84 S Ct 80, 11 L ed 2d 41); Doughty v. Maxwell (1964), 376 US 202 (84 S Ct 702, 11 L ed 2d 650); Arthur v. Colorado (1965), 380 US 250 (85 S Ct 943, 13 L ed 2d 818); and Linkletter v. Walker (1965), 381 US 618, at 628 (85 S Ct 1731, 14 L ed 2d 601). Thus, whether defendant Parshay was denied the assistance of counsel upon his felony conviction is an issue of Federal constitutional magnitude which he is entitled to assert in this appeal.
However, even before Gideon, this Court required, by rule adopted in 1947, that in every felony prose[12] cntion tbe accused be advised of Ms right to have the assistance of counsel and, if financially unable to employ counsel, that counsel be appointed for him upon his request. See Court Rules (1945), No 35a and, currently, GCR 1963, 785.3. Whatever the nature of the right, constitutional or rule, defendant Parshay, accused of a felony, was entitled to be represented at his arraignment by an attorney, either one employed by. him or, if he was unable financially to employ an attorney of his own choosing, by an attorney appointed by the court. This right the trial judge clearly recognized and advised defendant he possessed.
The entire record of defendant’s arraignment on the information is set forth in the margin. 2 It clearly appears from that record that the t,rial judge [13] advised Parshay of Ms rights to a jury trial and to the assistance of counsel. But, the record also discloses unequivocally that defendant was not given [14] an opportunity to assert those rights. The pertinent part of the record follows:
[15] “The Court. I want to advise you that you are entitled to a jury trial to have it determined whether you are guilty or not guilty, do you understand that?
“(Respondent nods head up and down.)
“The Court. You understand?
“The Respondent. Yeah, yeah.
“The Court. And also that you are entitled to he represented by an attorney in this matter, that is, an attorney of your own choice. If you have no money to employ an attorney, if you so request, I will appoint an attorney to represent you. Do you understand that?
“(Respondent nods head up and down.)
“The Court. Your answer is yes?
“The Respondent. Yes.
“The Court. Knowing what the charge is in the first count in the information, knowing what your rights are as I explained them to you, are you prepared to enter a plea of guilty or not guilty?
“The Respondent. Guilty.”
Whatever may have been defendant’s actual comprehension of the rights stated by the trial judge to be his, he was required to plead to the charge against him without having been given an opportunity to demand a jury trial, to consult with an attorney of his own choosing, or to request that one be appointed for him, before being called upon by the judge to enter his plea.
In March of 1963, when defendant was arraigned, GCR 1963, 785.3(1) read as follows:
“(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states ho will procure counsel or requests, that counsel be [16] appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.”
The rule did not in express language direct the judge to ask the accused whether he wanted a jury trial and whether he wanted to hire his own attorney or, if indigent, to have counsel appointed for him. However, it is implicit in the language of the first sentence of the rule quoted above that the accused, before he is required to plead, be given an opportunity to invoke the rights which the judge is required to advise him he possesses. See People v. Hilko (1966), 5 Mich App 166; People v. Winegar (1966), 4 Mich App 547; People v. Curtis Lee Williams (1966), 2 Mich App 232; and People v. Atkins (1966), 2 Mich App 199. If there be any doubt about that, the second sentence of the quoted rule surely removes it, at least as to the right to counsel’s assistance. By its express language it requires that a reasonable time be allowed, after the accused states he will procure counsel or requests that counsel be appointed, and before a plea is taken, for such counsel to consult with the accused. It is clear beyond dispute that the quoted rule means something more than that certain advice be given regarding some rather fundamental rights of an accused, but’that he need not be given an opportunity to invoke those rights.
As I understand my Brother O’Hara’s opinion, he believes that defendant Parshay was accorded such opportunity.' I do not. Had the judge, after advising defendant of his rights and before taking his plea, asked him whether he wanted an opportunity to hire counsel and to consult with counsel or, if indigent, to have counsel appointed for him, then I .would agree that defendant had been given the .'opportunity to invoke his stated rights which I read ■the-rule, to require. That was not done here, as the [17] arraignment record set forth in thé margin and partially quoted above clearly discloses, and for that reason alone, we are required in my judgment to reverse and remand for further proceedings. ■
But there is another dimension to the facts disclosed by this record. As noted above, the right to counsel defendant claims was denied him, since Gideon v. Wainwright, supra, is a right guaranteed by the Sixth Amendment of the Federal Constitution that is made applicable to the States by the Fourteenth Amendment. How that federally guaranteed light to counsel may be waived has been determined by the United States Supreme Court, .our judicial superior in matters affecting Federal constitutional' rights. It is no longer open to this Court to say, as I read Justice O’Hara’s opinion to mean, that an accused’s failure to request the assistance of counsel may be regarded as a waiver of his constitutional right thereto. The Supreme Court has said, instead, precisely the contrary, that waiver of counsel may not be presumed from failure to request such assistance; that something more than mere silence is necessary to constitute waiver.
Thus, in Carnley v. Cochran (1962), 369 US 506 (82 S Ct 884, 8 L ed 2d 70), a criminal case arising out of the State courts of Florida, the Supreme Court said (p 516):
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”
Even as early as 1938, in Johnson v. Zerbst, 304 US 458 (58 S Ct 1019, 82 L ed 1461, 146 ALR 357), the Supreme Court considered the duty imposed upon the trial judge, and the manner of its exercise, in determining whether an adequate waiver of counsel [18] was made, in circumstances which, even then before Gideon, gave rise to a federally guaranteed right to counsel (p 465):
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This 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.”
For recent summary application by the Supreme Court of Carnley’s rule in a State criminal case, see Doughty v. Maxwell (1964), 376 US 202 (84 S Ct 702,11 L ed 2d 650), reversing, per curiam, Doughty v. Sacks (1963), 175 Ohio St 46 (191 NE2d 727). See, also, Rice v. Olson (1945), 324 US 786 (65 S Ct 989, 89 L ed 1367), and, on the subject of waiver of constitutional rights, generally, Fay v. Noia (1963), 372 US 391 (83 S Ct 822, 9 L ed 2d 837).
This Court had occasion in People v. Whitsitt (1960), 359 Mich 656, to examine the record of proceedings the people claimed constituted the intelligent and understanding waiver of counsel by an accused. That record, which this Court unanimously found did not constitute waiver, factually or legally, merits requotation from our opinion in Whitsitt, supra, p 663, for comparison with the record of arraignment proceedings in this case of Parshay:
“ ‘Q. [By the Court.] You are here without an attorney. Do you desire to have an attorney to represent you in this matter, or are you willing wc should go ahead with the case without one?
“ ‘A, I think that we may, Your Honor.
[19] “‘Q. You say that “we may”?
“‘A. Yes, sir.
“ ‘Q. Do you want an attorney now?
“‘A. I would rather leave it up to the other 3 boys, if they wish it.
“ ‘Q. The other 3, I understand, do not desire an attorney, and they have not had an attorney.
“ ‘A. All right.
" ‘Q. Is it all right with you?
“ ‘A. Yes, sir.
“ ‘Q. To go ahead, is that what you mean?
“ ‘A. Yes, sir.
“ ‘The Court. The plea is accepted.’ ”
In Whitsitt the accused was asked, directly, whether he wanted an attorney, and he replied he did not; yet, this Court unanimously held such inquiry and response was inadequate, factually and legally, to pass muster as an intelligent and understanding waiver of the accused’s federally assured right to counsel. See, also, Moore v. Michigan (1957), 355 US 155 (78 S Ct 191, 2 L ed 2d 167), relied upon in Whitsitt; and In re Palmer (1963), 371 Mich 656. In Parshay, on the other hand, the record discloses that while defendant was advised of his right to the assistance of counsel, he was never asked whether he wanted to retain counsel or to have the court appoint counsel for him. Prom such a record, a “silent record,” in the words of Carnley, supra, a waiver of counsel cannot be found. See People v. Winegar (1966), 4 Mich App 547, and People v. Hobdy (1966), 5 Mich App 275.
Defendant was not represented by counsel; he was not accorded an opportunity to request the assistance of counsel, retained or appointed; nor did he waive snch assistance. In consequence, his conviction must be vacated and a new trial ordered.
[20] Dethmers, C. J., and T. M. Kavanagh, J., concurred with Souris, J.