ounsel. "Some members [minority] of the Court
think that where serious offenses are charged, failure of a court to
offer counsel in State criminal trials deprives an accused of rights
under the Fourteenth Amendment. They are convinced that the services of
counsel to protect the accused are guaranteed by the Constitution in
every such instance. _See_ Bute _v._ Illinois, 333 U.S. 640, dissent,
677-679. Only when the accused refuses counsel with an understanding of
his rights can the Court dispense with counsel.[859] Others of us
[majority] think that when a crime subject to capital punishment is not
involved, each case depends on its own facts. _See_ Betts _v._ Brady,
316 U.S. 455, 462. Where the gravity of the crime and other
factors--such as the age and education of the defendant,[860] the
conduct of the court or the prosecuting officials,[861] and the
complicated nature of the offense charged and the possible defenses
thereto[862]--render criminal proceedings without counsel so apt to
result in injustice as to be fundamentally unfair, the latter group
[majority] holds that the accused must have legal assistance under the
amendment whether he pleads guilty or elects to stand trial, whether he
requests counsel or not. Only a waiver of counsel, understandingly made,
justifies trial without counsel. The philosophy behind both of these
views is that the due process clause of the Fourteenth Amendment * * *
requires counsel for all persons charged with serious crimes, when
necessary for their adequate defense, in order that such persons may be
advised how to conduct their trials. The application of the rule varies
* * *" It would appear nevertheless that the statement quoted in the
previous paragraph from the Gallegos Case weakens this doctrine
somewhat. Nor is the Court's reply to the contention that such variation
in application "leaves the State prosecuting authorities uncertain as to
whether to offer counsel to all accused who are without adequate funds
and under serious charges," very reassuring: "We cannot offer a panacea
for the difficulty. * * * The due process clause is not susceptible of
reduction to a mathematical formula."[863]

Right to Trial by Jury

The contention that a right to trial by a common law jury of twelve men
in criminal cases was guaranteed by Amendment XIV was first rejected in
Maxwell _v._ Dow[864] on the basis of Hurtado _v._ California,[865]
where it was denied that the due process clause its