The petitioner has been well advised, both as to the substantive and procedural law applicable to his situation, as will appear from an examination of the authorities cited in the report above set out.
Where the defendant in a criminal prosecution, less than capital, is unable to employ counsel, the appointment of counsel for him is discre*302tionary with the trial court. S. v. Hedgebeth, 228 N. C., 259, 45 S. E. (2d), 563. It is otherwise, however, in capital cases. G. S., 15-4; S. v. Farrell, 223 N. C., 321, 26 S. E. (2d), 322. “In a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.” Powell v. Alabama, 287 U. S., 45, 77 L. Ed., 158, 84 A. L. R., 527.
The right to counsel in a capital case is vouchsafed the accused, both by constitutional provision—State and Federal—and by statutory enactment. G. S., 15-4; S. v. Farrell, supra; Powell v. Alabama, supra; Wade v. Mayo, 334 U. S., 672, decided 14 June, 1948.
The cases of S. v. Pritchard, 227 N. C., 168, 41 S. E. (2d), 287, and Abernethy v. Burns, 206 N. C., 370, 173 S. E., 899, are not to be overlooked. In the former, the court sought to appoint counsel for the accused. He declined to follow their advice, and they were relieved. In the latter, the plaintiff was able to employ counsel, but preferred “to go it alone,” as was his right in a civil proceeding. G. S., 1-11.
The petitioner seems to think that he is entitled to be discharged on habeas corpus. In this he is mistaken. In re McKnight, post, 303. Failure to appoint counsel goes only to due process, and not to the guilt or innocence of the accused. In no event could he obtain more than a vacation of the judgments against him and a restoration of the indictments to the docket for trial. He alone can decide whether he wishes to assume the risks involved in such a move, bearing in mind, of course, that not all things lawful are expedient. The petitioner could find his last state worse than the first. However, he is entitled to pursue his rights, if so minded. All this has been pointed out to him by counsel. Up to now lie seems to be obsessed with the idea, as he puts it, that “the writ of habeas corpus cannot be suspended in time of peace,” which demonstrates anew the truth of Pope’s assertion: “A little learning is a dangerous thing,” which properly interpreted means that a smattering of expert knowledge in the hands of an inexpert is a dangerous thing. And so it is. Nevertheless, in deference to the petitioner’s insistence, a ruling will be made on his petition for review.
It should be noted, perhaps, as pointed out in the answer to the petition filed here, that while charged with three capital crimes, the petitioner was allowed to plead guilty to lesser offenses under these indictments, and this after full consideration on the part of all concerned. Hence, the contention is made that the appointment of counsel for the petitioner was a matter resting in the sound discretion of the trial court, *303and that no violation of any of his rights has been made to appear. S. v. Hedgebeth, supra.
However this may be and whatever the merits of the matter, it could avail the petitioner naught to review the judgment of Judge Burney dismissing the writ of habeas corpus. Such writ is inappropriate under our procedure to obtain for the petitioner the relief which he seeks, and he has been so advised. In re Steele, 220 N. C., 685, 18 S. E. (2d), 132; S. v. Dunn, 159 N. C., 470, 74 S. E., 1014; S. v. Burnette, 173 N. C., 734, 91 S. E., 364. Not only is this so under the apposite decisions, but it is also provided by G. S., 17-4, that “application to prosecute the writ shall be denied . . . (2) where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.” In re Schenck, 74 N. C., 607.
It follows, therefore, that the petition for review must be dismissed.
Mr. Ehringhaus is relieved of any further duty under his appointment here. He has diligently investigated the law, advised the petitioner of his rights, cautioned him in respect of the potential risks involved, filed certified copies of the records in the case, served notice on the Attorney-General, and he further signifies his willingness to comply with any additional request, albeit he has received no compensation for his services. Nothing has been overlooked and full consideration has been given to every phase of the matter.