
    [No. 34177.
    
      En Banc.
    
    November 19, 1959.]
    
      In the Matter of the Application for a Writ of Habeas Corpus of Earl Johnnie, Petitioner, v. Robert J. Rhay, as Acting Superintendent of the State Penitentiary, Respondent.
      
    
    
      
      Frederick W. Post, for petitioner.
    
      The Attorney General and Michael R. Alfieri, Assistant, for respondent.
    
      
      Reported in 346 P. (2d) 657.
    
   Weaver, C. J.

Earl Johnnie was charged with the crime of carnal knowledge of a four-year-old female child. When arraigned before the superior court of Whatcom county, Johnnie waived counsel and entered a plea of guilty; was adjudged guilty; and sentenced to the state penitentiary for life.

Johnnie’s petition for a writ of habeas corpus and the return and answer thereto raised issues of fact which could not be determined by this court from the face of the record; hence, we referred the matter to the trial court. See Rule on Appeal 56 (5), RCW, Vol. 0.

The superior court of Whatcom county found, among other things,

“That at the time of the arraignment the accused was not informed of his right to counsel or of the fact that the State would provide counsel without expense to the petitioner if he lacked means; that at no other time prior to the arraignment or to the accused’s pleading to the information was such information given the accused.”

We adopt this finding of fact made by the superior court.

In these circumstances, we have held that a defendant has not competently waived his right to counsel; and that he has been deprived of rights guaranteed by amendment 10 of the state constitution and amendment 14 of the federal constitution. In re Friedbauer v. State, 51 Wn. (2d) 92, 316 P. (2d) 117 (1957), and cases cited.

The judgment and sentence of the superior court of the state of Washington for Whatcom county is hereby vacated; and Earl Johnnie is remanded to the custody of the sheriff of Whatcom county to answer the charge of the information; and the superior court for that county shall deal with him according to law and in a manner consistent with the views expressed herein.

It is so ordered.

All Concur.  