Note 838 — AMENDMENT 14 (continued 4)

Rice v. Olson, 324 U.S. 786 (1945), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel.

Dissenting for himself and Justices Black and Rutledge, Justice Douglas declared that, under the authority of Williams v. Kaiser, 323 U.S. 471, 476 (1945), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the Court, at least in capital cases, to appoint counsel, whether requested so to do or not."—329 U.S. 173, 181 (1946). In a separate dissent, Justice Murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."—Ibid. 183.