*1 «29 HOLLOWAY, Concurring Opinion Nov.
and I do not have funds with which pay an attorney legality to test the my conviction and sentence.’ Judge Fogg request referred the Public Defender of Oklahoma April 27, 1961,.filed an application on defendant’s behalf for a hearing to determine his to a public casemade at expense. The hearing was held which defendant testified represented by Defender, the' Public (cid:127) after which the court denied defend- application. ant’s Motion for new trial Anderson, Public Defender of Ok- Don . was overruled, filed and from which Old., lahoma ruling prosecutes these Gen., Williamson, de- Atty. ceedings for review.” fendant in error. question of whether or not . BUSSEY, Judge. the court abused his prop discretion is not erly before purported appeal by Franklin us on This is a We have re peatedly held Holloway, an inmate the State Peni- that Criminal Appeals McAlester, Oklahoma, acquire does not tentiary at from an jurisdiction un less the appeal be the District Court of Oklahoma order of taken from a formal judgment and County, denying appellant’s request for apparent sentence. It is that the order expense county. denying petitioner’s at the of the casemade request for public casemade Briefly by rec- expense as revealed is not judg ment and may be summarized fol- sentence ord before us within the meaning of (1951) O.S. lows : However, § court has treated purported appeal as an was convicted of the “Defendant application for a writ of habeas corpus and, Robbery with firearms crime of when it is asserted that the defendant’s jury being agree unable to on the rights constitutional have been violated. by punishment, was sentenced the trial See, Freeman Raines, Okl.Cr., 353 P.2d March court on to serve 30. We shall thus treat questions years Penitentiary. in the State On raised herein as they if by raised entry appear- an on the June corpus. habeas ‘application docket shows an ance that county’ casemade at We observe the outset filed and thereon set for presented this matter is that peti for the no hearing ap- June tioner defender of Oklahoma parently ever had. Thereafter defend- County, Oklahoma, Mr. Don Anderson. Judge Fogg (who Wm. ant wrote L. indeed a This is service which transcends presided. trial) on or about duty statutory defender 16, 1960, stating: March complied for he has with his statutory ob “ ‘I, Holloway, wich ligations when he has concluded repre his to this state Honorable Court sentation of the defendant in my property, that I Thereafter, am unable proceeds whether pay for the record of the is a matter resting in Case No. 25567. was judgment, sentenced in upon his profes based this Honorable Court on the 3rd-27- judgment. He has no sional or ethi 59, for the crime robbery, armed duty perfect cal which in his
g31
corpus.
It is the de- habeas
repeatedly
be fruitless.
court has
“he was
held that
question
sole
fendant’s first
be determined
application
at his trial
insufficiently represented
corpus
for writ of habeas
*3
is with- whether the
This contention
trial
jurisdiction
counsel.”
court had
of
person
the
represented
Whelling, who
and of the
charged
out
Mr.
offense
merit.
and
jurisdiction
a
had
has been
jury trial,
pronounce
to
particu
the defendant at his
the
lar judgment.
in active
See, Application
Bar
member of the Oklahoma
of Russell
Degen
practice
many years
generally
and
for
is
Writ of
Corpus,
Habeas
Okl.
Cr.,
crimi-
widely experienced in
359 P.2d
known to be
740.
had a witness
Whelling
nal
law. Mr.
right
has no
to a case-
Defendant
testify
Penitentiary to
from
brought
the
made
at
long after the time
He was
the trial.
behalf at
defendant’s
appeal
to
expired.
hold
We therefore
present
at the last
where
that Judge Wm. L.
in
Fogg did not err
any lack
him about
questioned
could have
refusing petitioner’s request
trial, but
representation
the
diligent
of
expense.
was not called as a witness.
In conclusion the court would like to
compliment
is
3rd contention
Mr. Don
The defendant’s
Anderson for the
trial was brief
defendant’s
submitted.
in
His
preparation
“verdict
detailed
that the
conten
and
analysis
candid
jurors.”
by eleven
made the
returned
task of this
court
The
much
facts
merit.
without
easier.
also is
tion
jury of
with a
trial commenced
that the
We are of
opinion
the
that defendant’s
jurors
the
one of
During
twelve.
assignments of error are
merit,
without
and
a funeral.
attend
excused
to be
asked
the
prayed
relief
for . should therefore be
Mr.
up defendant
and
When
denied.
the
with
agreed
it and
Whelling discussed
com
and
juror
the
excuse
prosecution
J.,
J.,
and BRETT,
P.
concur.
De
jury of eleven.
a
trial with
plete the
relied on
he
here
stated that
fendant
BRETT, Judge (concurring).
attorney
professional
opinion,
in the foregoing
concur
doubt,
reason to
time,
had no
which
add
am constrained to
that each such case
any
make
“didn’t
decision
and that
stand on its own facts
must
and circum-
time.”
me
difference
stances.
keep
should
Trial courts
mind that
fourth
Defendant’s
appealed
will neither bolt the
his case
that “the State
door
wanted
that, “Defendant
ap
equal
a wasteful
justice
it would be
abuse
him
told
his counsel
and
attorney
appellate process,”
People
Griffin v.
are that his
pealed.”
Illinois,
12,
ap
351
that an
of State of
U.S.
76 S.Ct.
determined
the case
tried
success;
right
L.Ed.
But “the
100
891.
no chance
have
peal would
may
accorded
be
state to the
that the defendant
existed
slight chance
as in
year sen
such terms
its wisdom
his 35
accused
reduction
might get a
proper.”
may
McKane Dur
had been sen
be deemed
v.
codefendant
because
tence
offense,
ston,
14
153 U.S.
S.Ct.
years for the same
tenced
868.
obtaining this
L.Ed.
best chance
but that
Parole
through
Pardon and
be
.the
petitioner
appears herein
It
by appeal.
than
rather
Board
requirements
comply with the
en-
did
lawyer’s
complain of his
deci
now
cannot
legislature
acted
Camplain
appeal his
See
case.
sion not
Nevertheless, both the trial
court
Okl.Cr.,
340 U.S. 71 S.Ct. regard the
Trial courts should never neglect
right of accused to indifference, prison
or officials Certainly arbitrarily.
never consider them partici- become active
neither should ever appeal,
pants the- the denial of implements in denial
and thus as
process justice. thwart the ends Frasier,
Thomas Dee Tulsa, PAYNE, Williamson, Atty. Gen., Robert Howard Cecile Simms, County County, Atty., Tulsa Ted Flanagan,. County Asst. Atty., Tulsa Tulsa, for defendant in error. Court Judge. Presiding Payne, Howard Cecile hereinafter refer- defendant, charged by
red to in- in the formation Court Common Pleas Tulsa, City of Tulsa driving without a driver’s license while un- offense; suspension, der second was tried jury, guilty punishment found before days county and 90 affixed in the $200 jail. granted filing peti-
Within time made, appeal tion in error and case perfected to this court. A brief in petition in error to have been in this filed later than date no brief been filed, appearances made when this case argument oral July docket of Finding no fundamental error in the record, by reason of the uniform hold- ing court, and sentence of the Court of Common Pleas City of Tulsa, Tulsa County, affirmed. BUSSEY, BRETT and JJ., concur.