*1 620 1958, argued April 6, November
Motion denied affirmed May rehearing petition April denied DELANEY OF OREGON STATE 2d 332 P. 2d 351 P. *2 J.
ROSSMAN, Ms in the Following conviction for Circuit Court County of the crime of assault with Clackamas intent the defendant notice gave to commit rape, appeal an this affidavit in which (1) and filed with court he and indigent, himself as motion (2) described for orders of coun- (a) appointment which sought directing him upon appeal (b) sel to represent County for deliver him, Clackamas Circuit Court county expense, transcript proceedings at of the that court. We shall assume that defendant’s affidavit, indigent, which describes him as is truthful. The mo pursuant tion that it states “is made to the decision Supreme of the Court United States in the case (351 State vs. Illinois” US SCt Griffin 1055). only L Ed 55 ALR2d The informa 585, 100 concerning appellant’s tion case which we have is following part given (a) of the affidavit: “I my grounds opinion,” have meritorious charged (b) he the name of the crime with which (ORS 163.270). penalty guilty not to for the years’ imprisonment. 163.210. The exceed 20 ORS grounds” has not dis the “meritorious been nature of concerning the de have no information closed. We experience. age, If education and such as his fendant, represented circuit counsel in the defendant was attorney as to there is no statement court *3 opinion, a basis the defendant has in his whether, appoint appeal. us to defendant asks an the Thus, for county supply require the to him and to counsel for merely transcript he “I states, him because with a my opinion.” appeal grounds in for have meritorious supply judge to an . trial the 21.470 authorizes ORS transcript expense, county a indigent appellant, at judge, at bar, in the case proceedings. trial the transcript delivered to the be that ordered has phase accordingly, of the motion that and, defendant, requires attention. further no question of faced with case, in this not,
areWe perfect- purpose attorney appointment for anof laymen, appeal. doubt, no Few ing the defendant’s require- procedural comply to able be would It aid of counsel. regard without that in ments said is here that what understood be therefore, should, only question attorney relates to the of whether an appointed present be to the case for the defend- should by argument. ant and oral brief motion The defendant’s states that it “is made # * * pursuant to vs. State Illinois.” Griffin together in that with his had case, co-indictee, Griffin been convicted the Illinois state courts of armed robbery. Preparatory appel to the Illinois the two defendants moved in the trial court late court, delivery public expense, transcript a at them, proceedings. An of the trial affidavit described the indigents. defendants as The Illinois courts denied Supreme United States held the motion. The Court impinged upon rights that denial of the motion which granted to Federal the defendants. Constitution recognize, pointed out Schaefer as Justice We Supreme Court in “Federalism and State of the Illinois L Harv Rev Procedure,” Criminal Griffin a alone like an island in sea, does not stand v. Illinois holding development a further but that its per rights possessed it an accused ever since was process equal protection clauses the due ceived applicable crimes in are tried for to those who are state courts. gives
Although all convicted of crime Illinois only a manner which error, review writ through. complete a of ex- can had is bill review transcript essential ceptions, of the record is and a transcript, appellant Without to such bill. during rulings challenge made which were unable reception in the instruction of of evidence judge had in the case jury. Griffin the trial After *4 petitioners ex- the motion, defendants’ denied lacked the but still remedies state their other hausted transcript. members United indispensable' Five Supreme States Court deemed the denial of transcript awas matter of federal concern. Whether transcript all five believed that the denial of the was infringement upon process equal pro- an the due definitely tection clauses cannot be determined from recognized decision. The latter state is not provide required to those convicted of crime with appellate but held that if review of that nature review, pay expenses can is allowed to those who thereof, granted it must like extent to those who cannot. be equal protection according The clause so demands, holding, which stated: adequate “Destitute must be afforded as defendants - money appellate review as defendants who have enough buy transcripts.” majority held that unreasonable discrimination justice, in the of criminal whether dur administration ing appellate the trial or review, constitutes arbitrary fundamental denial of fairness which the Poverty process due clause does countenance. from the an irrelevant element and cannot withhold penniless appellate review available those ade sought-for quate financial condition. Without appellants transcript, two would have would-be appellate review to the same been unable to secure purchase transcripts. The could extent as those who Eskridge v. Schneck was followed decision Griffin Gladden, L Barber v. 947, 2 Ed2d 526. loth, 355 US yielded P2d effect P2d Or holding by ruling indi since the that, Griffin to the corpus gent. petitioner in that for a writ of habeas undertaldng pay and, on for case could not pay, would denied those who could unlike therefore, statutory requirement filing appellate review, undertaldng deemed waived. would be *5 transcript Had the need for a in the ease Griffin undertaking in the Barber case not been and for appellants those would-be would have been barred met, complete appellate which at the from the review was those in favorable financial circumstances. avail of at whether the defendant has or bar, the case But, attorney, not an his case will receive considera- has brought from this court. The notice of has tion 19.030(3). It and the case to this court. ORS must, attention. receive our will, only transcript sought by
Although a was appellants in the the court’s case, Griffin would-be something broader than that docu- was with concern principles concern was with the of con- ment. Its “equal pro- that have become termed law stitutional given process” in a case “due whether tection” and transcript pertain principles of record or those deny if not will met, need which, to some other process. equal protection appellant or due would-be to the States Amendment United Con- The Sixth says: stitution prosecutions, the accused shall criminal “In all
* * * of counsel for his the assistance have defense.” Procedure Rules of Criminal the Federal
Rule 44 of follows: appears in court without coun- “If the defendant right him of his to counsel shall advise the court sel, every stage represent assign him at counsel proceed proceeding with- unless he elects obtain counsel.” or is able to
out Oregon, provides: § Article Constitution I, prosecutions, the accused shall criminal “In all * * # right himself to be heard have the ** counsel; says: ORS 135.310 appears arraignment “If the defendant with- out he counsel, shall he informed the court that right being
it is his to have counsel before ar- raigned and shall be asked if he desires the aid of counsel.” 135.320
ORS follows: appears upon arraignment “Whenever it of a person accused in the circuit court of a crime *6 * * * that he is without funds and unable to t * * retain his own the cour counsel, shall, upon request appoint of the accused, suitable coun exceeding represent not sel, to him.” two, applies magistrates, which ORS to 133.610, con- provisions substantially tains the same as 135.310. ORS empowers appoint 138.820 ORS this court to coun- represent upon appeal sel to the defendant “if he is already represented by governed not counsel” in cases by automatically appeals which 138.810, ORS death judgments. provides compensation
ORS 135.330 for for appointed Pay pursuant to 135.320. ORS county proceeding ment is made which the is plea guilty charge had. If the a a of misdemeanor, charge upon felony remuneration is a but it is $5, day plea guilty, per If the not fee for $15. $10 days charge not more than two of a misde payable, day per meanor becomes and if the ac $15 charged felony, except cused is with a in homicide exceeding In the latter kind cases. cases of “a sum not máy paid court-appointed counsel. $150” appeals Counsel fees in for which ORS 138.810makes provision are fixed this court in a reasonable paid by county judg amount are in which the 138.840(3). ment of death was entered. It ORS seems clear above statutory provisions cited, OES have no exception 188.840(3), application to services rendered and that do they upon appeal, authorize this court counsel. But see OES appoint 21.720.
Johnson Zerbst, 304 US L 58 SCt 458, 1019, Ed decided in 1461, 1938, represents the first pro- nouncement the United States Supreme Court the Sixth Amendment guarantees the assistance all counsel to defendants federal criminal trials. It held that with the compliance Sixth Amendment “is an essential jurisdictional to a federal prerequisite court’s authority accused of his life or deprive right was if liberty.” Waiver held permissible made. The “competently intelligently” crime in that case was non-capital.
Provision assistance of counsel in state under courts Fourteenth Amendment has not in the federal been as broad as courts under the Sixth v. Alabama, Amendment. Powell 287 US 53 SCt 45, ALR indicated L Ed that the assist in the courts is of counsel state essential to due ance *7 Betts v. cases. However, in at least capital process L Ed SCt 86 re 1252, 1595, Brady, 455, 316 US Powell said: case, to the ferring “* * * further that The court stated ‘under * * * the of coun- necessity the circumstances that the failure vital and imperative was so sel an effective appointment court to make the trial due a denial of process’, was likewise of counsel in crim- this would be so other ‘whether but added: we or under other circumstances, inal prosecutions, necessary All that now to determine. need not in a that, capital case, do decide, as we decide, counsel, is unable employ the defendant where own de- his making and is incapable adequately ignorance, fense because of il- feeble-mindedness, literacy, duty or the it is like, the of the court, requested assign whether or not, counsel for necessary requisite process him as a of due of law; * * » Brady, supra, After Betts v. it became clear that process due under the Fourteenth Amendment does require the assistance of counsel in all criminal cases in state courts. The Betts case was a habeas corpus proceeding petitioner, in which the con- Betts, Maryland victed in a state court of the crime of rob- bery, challenged validity of his incarceration on ground indigent, an he, was denied counsel in process alleged violation the due clause. The de- pointed applies out the Sixth Amendment cision only to in the federal and trials that the due courts, process Fourteenth clause Amendment does not incorporate specific guarantees itself nega- Amendment. The decision answered Sixth process question a due demands that tive of whether every circumstances, “in criminal whatever the case, indigent defendant.” state must furnish counsel to fairly appears trial can to be The test whether justice and accorded to the defendant with- conducted of counsel. out assistance Illinois, Bute v. 333 US SCt
In Boy according petitioner, to the Bute, L Ed guilty “taking pleaded to the crime of had record, had sen- been children,” indecent liberties penitentiary than for not more Illinois to the tenced ap- serving years. twenty sentence, his While Supreme pro Court of pearing Bute filed in se, indigent seeking as an leave sue a motion Illinois judg- proceedings which led to his review of granted and was he motion ment of conviction. *8 representa- a claim relied that he had been denied Supreme tion counsel in his criminal trial. The judgment of Illinois affirmed Court of conviction thereupon Supreme the United States Court granted Supreme certiorari. The Federal Court, denying said: relief, subject,
“After exhaustive consideration of the this ment does has decided that the Fourteenth Court Amend- through process its due not, clause or requiring have the otherwise, states effect of the several procedure to conform of their state crim- precise procedure inal trials to the of the federal procedure even-to the extent that the courts, prescribed by federal courts is the Federal Consti- Rights. tution or Bill of w w
“* * * procedure So here the followed Illinois should not be held to violate the standard permissible process broadly recognized of law by the Fourteenth Amendment unless the Illinois procedure very violates ‘the essence of a scheme liberty’ of ordered and its continuance would ‘vio- “principle justice late a so rooted in the tra- people ditions and conscience of our as to be ranked ’ as fundamental.” “* * * The states are free to determine their [*] [*] [*] practice own as to the assistance sub- counsel,
ject general practice to the limitation that such deprive liberty shall not prop- the accused of or life, erty process without due of law.” The decision further indicated that when a record on competency is silent as to a defendant’s to con competency may duct presumed. his own defense, harmony just See, with the decision reviewed, v. California, Crooker 354 US 1 L SCt 1300, Ed 1426. *9 applying the
In test announced in the decisions just presumption competency unless the of reviewed, age, experience employed, the and intelli- education, gence together of the with the seriousness defendant, complexity charge and the of the are issues, of the matters for consideration. relevant preceding paragraphs The decisions reviewed applications appointment the concerned with were in the trial court. The of counsel to serve the accused appointment of counsel to motion before us seeks the upon appeal. defendant-appellant the serve opinion Illinois v. State Before the Griffin of many rendered decisions had been was announced upon question as to courts the federal and state defendant was entitled a convicted destitute whether appeal. upon court-appointed will now We to counsel of them. note of some take F2d held that 174 Sevilla, 879, v. States United it do the court although authorized so, no statute ap- authority appoint on counsel had nonetheless peal defendant. destitute for a convicted person Supp that a ruled F Sanford,
Reid v. of charged to the assistance is entitled a crime with part appeal regarded as a upon appeal. It counsel of the trial. Hilgemann, Ind ex rel. White
State question as that a determination held NE2d indigent defendant was a convicted or not to whether attorney court-appointed entitled provisions of the a consideration “involves process clause the due Indiana Constitution ques- answering In constitution.” federal of the declared: court affirmative, tion in attorneys appointed held have “We actions persons poor in criminal defend court required compensation; cannot be to serve without requires persons the Constitution that such shall have counsel; and that courts have inherent power expense compensa- to incur the and order paid county tion for counsel out of funds.” citing after court, one of its earlier decisions, ruled: guarantees “The Constitution of Indiana an ab * * * right solute to a review this court. one right provided accused crime has the to be literally every stage £at proceedings’
including
proceedings by
may
which he
seek
by appeal.”
a review for error
*10
court-appointed
It stated that if the
counsel found no
assign upon appeal,
substantial error to
the constitu-
right
tional
is satisfied and the defendant cannot de-
appointed
mand that other counsel be
for him.
Youngblood,
State ex rel. Walker v.
Ind
225
375,
citing
Hilgemann,
In the considera decisions, two Indiana given they grounded tion must be to that the fact the right appellate to counsel in the court constitu provisions doing tional in that Indiana so held the right appeal. § constitution confers a to Art of I, 13, says: prosecu “In all the Indiana constitution criminal * * * right accused shall have the to be tions, the * * According #.” counsel; heard himself Bight p Beaney, Indiana to to inter Counsel, 82, provision pretation “is this common constitutional of 682 outspoken all most states.” Knox However,
County v. State, Council Ind NE2d 493, 405, power appoint 130 ALR indicated that to indigent counsel for is court. It inherent “they power everything have said, inherent to do necessary carry purposes out the of their crea tion.” v. Johnston,
Osborne F2d one of several defendant, that hold that a convicted federal decisions appeal. right appointment to the of counsel on has no Kelly Ragen, corpus F2d a was habeas brought by prisoner proceeding who under was 15-year crime of sentence, after his conviction Supreme its affirmance Court. murder and state represented by his counsel of In the trial court he was ap legal representation upon but lacked own choice, appointment although peal, he had moved for expense represent at him the the state. counsel denying Supreme Court, motion, his The state power to furnish counsel. it was without stated judg affirming Appeals, in federal Court which dis Court, States District the United ment of corpus, petition declared: of habeas for writ missed ** “* that Court true that refused It is may represent him and it be that appoint the absence responsible his fail- was of counsel *11 properly signed present bill of settled to ure appellant does and we exceptions. not, However, tbink of that Court that failure cannot contend he expense appoint of the State at counsel power so, con- lack of do its stated because rights, his Constitutional a violation stitutes * * ?? # den 314 118 F2d cert Johnston, 704, v. Lovvorn corpus a habeas L Ed was 488, 62 SCt 86 92, US 607, 633 petitioner proceeding in which the had been convicted preceding conspiracy passing in a case of counter- money. nullify judgment feit In order to of convic- petitioner alleged that he had been unable tion, appeal knowledge conviction for lack of of how his appeal, an and that his trial counsel had with- to file shortly before the verdict without his consent drawn rejected replaced. The court his and had been ground there is no constitutional claim on prosecuting right in an to the assistance appeal. (affirmed opinion parte Supp Lee, F on
Ex 123 439 Kindelan, F2d cert den 348 647, Lee v. 217 US below appli- 759) L was an 99 Ed based 538, 75 SCt corpus presented of habeas Lee, for a writ cation pursuant judgment serving a sentence was who Superior Court of Rhode Island. of conviction illegal charged because the that his sentence was He aid him the assistance of counsel to denied trial court Supreme perfecting to the Court his petition for the writ was denied. His Island. Rhode authority Brady, supra, as Betts v. cited The decision appointed right to have counsel that the the view for only process if a fair hear- exists clause the due under possible. ing not otherwise only which have decisions are not above appointment of counsel as to the issue
resolved upon appeal. indigent to other deci- Citation People NY2d may Breslin, v. 4 found sions App Logan, People 290 137 Cal 85; NE2d ALR2d Comments 1072; annotation 11; P2d L Q 1; Case, Corn The Griffin Rev 143; L of U Chi L 70 Harv Procedure, Criminal and State Federalism 413. Rev concerning an indi- reviewed far so
The decisions *12 gent’s right upon tó appeal the assistance of counsel prior in criminal cases were rendered to Griffin Illinois. We will now consider some that were an- People supra, nounced after that decision. v. Breslin, upon application ruled an similar to the one before defendant-appellant us. After the in that case had guilty attempted been found extortion, His counsel appeal Appellate copy took an to the Division. A the minutes of the trial was sent to a that court and copy defendant-appel- was rendered available the Shortly Appellate lant. the defendant moved in the assignment Division of counsel. The motion presented Appellate was denied. The defendant to the 16-page a Division brief in which he raised numerous points unanimously of law. His conviction was af- Appellate thereupon firmed Division and he appealed Appeals, assigned to the Court of which assigned him. counsel for The counsel submitted a presented only in which he brief the contention that Appellate refusing assign Division erred in supplemental defendant filed a counsel. The brief in presented disputations, which he several such as a jurisdiction. trial court claim lacked Appeals, argu- review of the defendant’s Court found them to be without and then merit con- ments, assigned the contention of counsel that sidered refusing Appellate appoint erred Division attorney. members of the court held that Five assign counsel did not constitute two error; refusal separate opinion, each of whom filed dis- members,' majority opinion held: sented. The statutory provi- or no constitutional “There Is requires assignment which coun- sion leading indigent In to an defendant. case sel of Betts v. Brady, 316 U.S. S.Ct. Supreme L.Ed. Court of the United States petitioner’s held that conviction and sentence for robbery in a State -which did not court, mandate arraignment depri- on was not a trial, liberty process vation of his in violation of the Fourteenth without due of law *13 because
Amendment, appoint of the court’s refusal at his request.” The decision took note of a York New statute which provision assignment made for the of counsel at the arraignment, following time of the which it said: “* # * right assignment This of counsel important stages to a defendant in the various upon it is the record that trial, is then guilt that a made determination of or innocence is predicated. the record Once has been it made, ordinarily changed, appellate cannot and an tri entirely competent bunal is to determine whether given necessary. in a case the aid of counsel is # # # may “Indeed numerous cases be found in which by the contention here made defendant’s counsel rejected by has been considered and the courts. Among the decisions which hold that a defendant constitutionally required was not to have counsel assigned on an after a conviction are:” point large At that the decision cited a number of federal and state decisions. At the conclusion of the proceeded the decision citations, this statement: by “The rules enunciated these decisions have not affected been the decisions of Griffin v. Illinois, 12, 351 U.S. 76 S.Ct. 100 585, 891; L.Ed. v. Johnson United 352 U.S. States, 565, 77 S.Ct. People 1 L.Ed.2d 550, 593; v. 3 NY2d Pride, People 170 N.Y.S.2d N.E.2d 321, 147 or v. 2 N.Y.2d Kalan, 159 N.Y.S.2d N.E.2d 480, 140 In 357. these defendants did not tran- cases, have scripts proceedings, precluded trial which obtaining adequate appellate them from no review, matter how meritorious their Here, eases. defend- transcript has had as ant well as review of Appel- his case the record of the trial, late Division.” distinguished by say- The decision v. Illinois Griffin
ing, transcript.” had defendant has “Here, 26 Law In Week California, Crooker State of 1958), (Sup the court declared: Ct right counsel for his “The accused to de- firmly though not fixed in our common-law fense, heritage, significant importance preser- to the liberty Cooley’s country. this See vation (8th ed.) 696-700; Limitations Constitutional (4th Story ed.) § That 1794. on Constitution prosecutions by right, in state the Four- secured guaranty process, in- Amendment of due teenth only right attorney ap- to have an cludes pointed in certain but also the the State cases, *14 opportunity right of an accused to ‘a fair to secure Alabama, his own choice.’ Powell v. 287 counsel Fretag, (1932); v. 348 3 53 Chandler U.S. 45, U.S. (1954). principles, of a re- these state refusal “Under engage process quest due not to counsel violates only deprived if of counsel at trial the accused is Fretag, supra, Chandler v. but also merits, on the any part deprived of counsel for if he is pretrial diced provided preju- proceedings, that he is so thereby subsequent as to infect his trial with of ‘that fundamental fairness essential an absence very concept justice.’ Lisenba v. Cali- to the (1941). 236 Moore v. 219, 314 U.S. Cf. fornia, (1957). Michigan, 160 The latter 355 U.S. 155, necessarily depends upon all the cir- determination of the case.” cumstances States, v. United 565, 550, US 77 SCt Johnson a certification made a fed- L involved 1 Ed2d appeal by that an the convicted district court eral Congress provided, would defendant be frivolous. in appeals § pauperis for in forma un- USC, writing (the trial court in less “the certifies that it appeal) good is not taken in faith.” The Court Appeals had affirmed the trial court’s certification assigning prose- counsel without to defendant in application cuting appeal his for leave to in forma pauperis rendering and without available to him transcript stenographic holding of the trial. In disregarded, the trial court’s certification must be Supreme United States Court declared: Appeals assign the Court of did here not “Since petitioner prosecuting forma ap- assist his plication pauperis for leave appear Appeals it does not that the since Court petitioner adequate presenting assured means of it determining a fair for basis whether the dis- judg- trict court’s certification was warranted, ment below must be vacated and the case remanded Appeals proceedings to the Court of consistent with this for in- opinion.” People Logan, App In 137 Cal P2d 11, guilty selling who had defendants, been found petitioned a narcotic to a minor, the court for appointment peti- of counsel. The court referred the Angeles tion to the Los Bar Association Committee Appeals report on Criminal for a as to the merit of petition. assigned inquiry The committee report stating two of its members who amade written petition ground that the disclosed no meritorious appeal. defendants were so advised and their time ap- brief filé a was extended. Counsel was not *15 pointed. affirming judgment No brief was filed. In the court stated: conviction,
“Appointment represent indigent counsel right part appellants is not matter as a discretionary process. the court It with is due request appointed and counsel should be whether clearly ap- appointment if it should be denied for appeal pears matter before or other the record that from merit.” the court is devoid of completes of the au our treatment The above that We believe Johnson United States thorities. readily distinguishable from this case. are aware We Brady, supra, inferring that Betts v. of no reason for process does not re held that the due clause which appointment quire criminal of counsel in state cases justice “fairly ac conducted and cause can be if the although undergone judicial erosion, has corded,” poor added to its demand that the v. Illinois Griffin appellate given review as those as broad be shall In both the short, financial circumstances. favorable equal protection the Four process clauses of and due rights protect the of a defendant Amendment teenth charged the commission with who is in a state court of crime. required (1) to determine whether an now
are We appellant non-capital in a that, ease assertion grounds opinion, for he has meritorious in his appoint counsel for him, the court that demands power appointment make the if (2) has this court must be made. one standing requires long in this state
Practice appointed the trial bench for an counsel charged with unless indigent crime, who defendant developed practice right. No has in this he waives appointment In of counsel. several cases court upon meeting appointed the circuit court, appealed the have case court, defeat represented their client here. have court this *16 provisions § Constitutional such as Art I, 11, Oregon frequently Constitution, have construed been going as no further than to assure the defendant that may he be heard himself and the counsel which he employ. chose to The reason for that construction is felony the fact a 1836 defendant in that.until case England right Beaney, in no had to counsel. The Right p to Counsel, For 8. citations to decisions so holding provisions under constitutional similar to Art § Oregon Beaney, Right I, see The Constitution, p provision to Counsel, 80. "When the constitutional right is construed in that the accused manner, has the through legislature to heard his counsel, and the prohibited destroying right. from as However, we provision Indiana have constitutional noticed, bear right ing upon representation by to counsel is interpreted penniless may to mean that a accused de appointed mand that counsel be for him whether the charge felony is a misdemeanor or a and whether he appellate makes the demand in the or the trial court. Very likely § Oregon, I,Art of the Constitution, right grants the accused which “to be heard himself he counsel,” means that shall be heard own choice if he counsel of his but wishes, does not any power appoint court to confer counsel. § we fact that do not believe that Art I, Oregon power appoint confers to Constitution, power appoint that courts lack not mean coun- does poor. statutory taken We have note of sel power Every provisions confer of that kind.' which jurisdiction upon being general created has court substantially way powers in the same as a incidental agent appointed person been for another. has It who speak customary the instance of courts to. They powers as inherent. enable court to incidental appoint a clerk maintain records a bailiff attorney maintain order. An court is an officer of the novelty be a that a could and it would hold court doing appoint one to assist of its officers it developed justice it that the court could not do when justice aid of such an officer. without the *17 following supra, Alabama, the Powell v.
From taken: *
“* * duty appoint trial court to of the The as it is circumstances clear, under such counsel clear under by as are disclosed circumstances such power to even so, and do record its here; questioned. statute, can not be of a in Attorneys absence and are bound court, are officers required by appoint- such an service when to render supra, Cooley, Lim. 700 and note. Const. ment. See by every and state statute “The United States provision express or the of the law, in the Union duty it the make courts, of its determination trial counsel, employ judge, is unable to where the accused appoint In him. most states to counsel for prosecutions, applies broadly to all criminal the rule to more crimes, it is limited serious others very capital A limited to cases. number, in a adopted with such unanimous accord reflects, rule right the inherent to if not establish have it does appointed present, at least in like eases counsel support convincing we to conclusion and lends reached to the fundamental nature of that have as right.” RI A Hudson, 100 ALR
State ruled: “Irrespective generally it is statute, held that power appoint inherent an at- a torney court has trial indigent person an in his for defense before jury.” Attorneys following quote Am from 50 Jur, We § at Law, 33: indigent power appoint an counsel for
“The power, accused although been said to an inherent has jurisdictions power emanates some legislature subject to from the the exercise is its regulation department.” and control of that We believe that all have in courts this state power appoint indigent person herent counsel for accused of crime when it that a need is established provided for counsel exists and that the situation is not met one of the statutes of taken which we have notice. just
It follows from the conclusions stated power appoint we have defendant- this appellant comply in full all of and to the demands equal protection process and due clauses of as construed in States United Constitution Griffin supra. Illinois, v. State of question presents itself as to whether now when it vir moment, court should at this knows this tually *18 appoint nothing appeal, about the would-be coun may defendant-appellant or whether we sel for the wait transcript is filed with our until the clerk. Betts only Brady, appointment supra, that an demands fairly appeal if made cannot be conducted should be justice equal protection cannot and be done. clause require appellants in criminal does re cases, appeal, gardless given merit of of the their should be attorneys.
Normally, hardship upon any appel- no will be east petitions appointment lant who for the of counsel or transcript petition grant (1) a if his is made only appeal given, (2) after notice of has been ac- sufficiently companied a financial statement detail to enable a court to determine' the financial petitioner, (3) status states the reasons which persuade possesses the defendant that he believe grounds appeal, (4) for and meritorious submits to any, attorney, repre- this court the name of the if who sented him in the trial court. present transcript
In the of the record case, reach our files and the will soon defendant’s hands. That document will indicate whether the defendant was represented give counsel in the trial court and will attorney’s may attorney name. It be that the will willing express possible a belief as to the be merits rulings, any, of this and indicate the if which worthy he thinks are of review. the defend Likewise, transcript possession, may in his with the ant, willing place during to cite occurrences that took Upon court to trial which he wishes this review. re transcript any ceipt of the other information con cerning contemplated appeal that reaches the files give all of it of our we will attention. Art clerk, I, Oregon, says: § “Justice shall be 10, Constitution openly purchase, complete administered without delay.” propose to adhere to and without We mandate. can make a think that we better determination
We appointment petition after transcript than we received the can at we have this step light point. in the dark when To take will soon appeals as an to us ill-advised course. When the come transcript possible information is and other before us, petition. pass upon If the record will should we relating questions to the fairness of the trial disclose prejudicial rulings to be to the defendant claimed or to require the aid óf a nature as counsel for such appoint presentation, adequate we will counsel to their *19 the defendant. For the represent present we, therefore, full rule that we have to but power appoint counsel, that no will be made The appointment today. appoint- or its will await of the tran- ment, denial, receipt other information which any may script properly come. we know more about the would-be appeal,
Until for the of counsel is appointment appellant’s petition denied. specially concurring.
WARNER, J., in the statement of the law I concur which leads the conclusion that this court has majority duty indigent assist appoint power of felonies convicted perfect appeal persons that reasonably when it such an appears justified. in the formula which cannot join opinion
I determination for necessity for the such sets up the reason that it omits a step an appointment, necessary fairness to the applicant I deem which device for the court. time-saving and as a value on what no great party place I would as in his application representing appeal- state might matter what his education or No experi- able error. for him to make an ade- be impossible it would ence, ex- alleged errors, presentation or sufficient quate or unless was skilled cases, applicant rare in some cept suggests to me majority opinion law. “be to ex- attorney might willing” trial his unless merits of an appeal, on probable a belief press examination such an the record make will court this aid and, predicated thereon, say independent without for an warrant I do appeal. is not or there the court to come to a sound ability gainsay *20 by conclusion reason of its examination of the tran- script, procedure aside from the but, burden such would east the I feel the value of an in- court, dependent especially by appli- if examination, made give greater weight cant’s trial would to counsel, the against ultimate conclusion for or the need of counsel perfect appeal. an to majority opinion
I would make it clear in the application appointment when the for the of counsel, accompanied transcript testimony, the of is received only clerk the our court, the concern at that juncture satisfy appli- to will be ourselves that the indigent. thereupon pass If we cant is so we find, together transcript application, testimony, with the attorney applicant’s of record in the trial to of the certify for with directions to matter examination within opinion appli- or not in his a definite time whether good appeal, and if has cause for he so to cant finds, applicant briefly his reasons therefor. If the state him to defend in the lower court, had no counsel then application this court refer the have and I would attorney transcript an of our selection or a com- to preliminary investigation for such mittee of the bar Appeal, report is done the District as Court People Division California. District, Second App P2d 11. Logan, 137 Cal certify examining the record that in their If counsel appeal grounds are opinion shown, then no this denying application. in warranted be court would certify counsel in their hand, the other on If, warranting appeal, grounds then opinion are there upon this without fur- court, incumbent it should ap- here, the record forthwith examination ther bring matter to the attention of point by preparing necessary regular course in court making presentation an oral in behalf of briefs applicant. concurring part; dissenting J., O’CONNELL, part. part opinion in it is
I in that which concur indigent convicted of a crime held that an defendant assignment right of counsel to aid him has the necessary court whenever that is in his to this agree equal justice. But I cannot afford him by major- placed upon right qualifications this majority postpone ity would our the court. indigent whether the defendant is en- decision as to *21 appeal until had on we considered to counsel titled premise appeal is that a men- its merits. The the on although person, tally competent untrained in the law, adequately presenting this a capable court suf- of is description to enable us to safe- of his claims ficient rights. agree guard I cannot with constitutional his expressed majority premise. in fear is the this appellate is opinion review” afforded if “free by indigent a court will be disabled this defendants may appeals. be but it true, That well of flood guarantee equal of the constitutional if irrelevance process of under protection law, and due the laws of requires us to furnish Amendment, the Fourteenth Admittedly, there is no clear cases. in such by decided United States in the cases command reasoning But the in do so. Supreme that we Court (1955), 12 when laid Illinois, 351 US v. Griffin snugly present fits so that I feel case, of the the facts In the decision. Griffin case control our it must ap- was entitled on defendant that the held court proceedings, transcript trial court be- peal of the to a transcript deny would the use of cause a denial granting poor while “adequate appellate review such supra, review to all others.” Illinois, v. Griffin page says, at 13. as Justice But, Qua “It seems clear special significance that no attaches to the fact that expense happened in the Griffin case to be the cost transcript comparable of a instead of some other ex- pense necessary adequate appeal to a fair and under state L law.” 25 U Rev at Chi 147-8. As I see it, important pro- the assistance of counsel is as in the rights appeal transcript tection of one’s on as a proceedings many the trial court. In cases the need appeal great for counsel on is as as it is at the trial majority recognizes of the case. The that under some counsel on circumstances would be essential satisfy guarantees. constitutional But it assumes protection can itself afford the needed that the court scrutiny by prepared a document the defend- provide I do not believe that this would ant himself. protection indigent with the which he defendant represented In were he counsel. would receive large backlog place, this court, cases, first spend necessary position to the time in a proceedings possible in the errors out search might disclosed defendant’s which trial court point is made This same dissent- “document.” People NYS2d ing opinion Breslin, *22 said: (1958), it was where appellate suggested tribunal, that hav- “It is entirely competent is to ing it, record before the pass upon the and merits without case the review experience However, has demon- of counsel. the aid just enough in are hours the there that strated day busy appellate judges permit no courts, willing, and to examine how conscientious matter carefully them as or records before read the and as single-minded ap- critically counsel for the as indigent case where an pellant. as is the And, if, there bnt one defendant the involved, copy and that the task of record, typewritten, adequate review without the aid of counsel to appellate point and alleged errors call attention to the asserted some questions of which law, might otherwise escape judges, approaches impossible.” that the court argument itself is adequate for defendant was answered in Powell v. indigent Alabama, US There the court dealt (1932). with the question defendant’s to counsel right at the trial of his but stage case, Mr. Justice Suther- statement land’s can be as to a applied well case in- volving the defendant’s on right appeal. He said:
* * But how can a whose judge, functions are purely judicial, effectively discharge the obli- of counsel for the accused? gations He can and to it should see that in the proceedings before the court the accused shall be dealt with justly He fairly. investigate cannot advise facts, direct the or in defense, participate those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.” 287 US at page L 61, 77 ed 158 at 166.
Even if we as a court should apply ourselves diligently to the task of searching appellant’s document it error not be may revealed, because the defendant, untrained in the law, may not know what in say order to suggest us the possibility of error in the below. proceedings system
Our appellate review, including op- for oral portunity argument, is predicated will be assumption advocacy helpful the parties and to the court at the arriving proper conclusion. To as the say, majority seems to say, advocacy is not court’s important influencing decision in
these or that the court cases, itself can take over that role with its along judicial functions is to disregard realities of our legal procedures.
This court harassed a .already considerable volume of frivolous in criminal eases. It appeals almost certain that the of counsel guarantee on appeal defendants indigent would increase the volume of As a appeals. such we are forced to consequence post- our decisions in meritorious But pone cases. we cannot deny defendant of the laws equal protection because some the state’s defendants use simply legal the abuse of the frivolous If machinery purposes. eliminated it must be ac- is to be privilege which does not some deprive complished procedure constitutional rights. of his defendant in this J., joins opinion. McAllister, THE MERITS ON *24 jRobert Mulvey, Oregon City, argued M. the cause appellant. and filed brief for Deputy Attorney, E. District Frazier, William Ore- City, argued gon respondent. the cause for With him Attorney on the brief were Robert Y. Thornton, Gen- Salem, Winston L. District eral, Bradshaw, At- torney, Oregon City.
Before Chief Justice, McAllister, and Rossman, Perry, and Warner, O’Connell Sloan, Goodwin, Justices. J.
SLOAN, jury convicted of a Defendant was verdict rape. of with intent to of the crime assault commit He assignments require appeals. error The of reference parties of the evidence. The actual will to some complaining and defendant; to as the state the referred Peggy. given her name of witness charging part of the indictment The reads: Delaney Robert on “The said Jack or about the day County A. in the March, D., 1958, of said 6th Oregon, and State of then and of Clackamas there unlawfully feloniously being, and and did then as- Joyce Peggy Wilson, who was then and one, sault age years, of sixteen a female over to-wit: there and there twenty-five years, by of then age violently assaulting, and forcibly grasping, seizing, and clinching, beating threatening grappling, and with intent then Joyce Wilson, Peggy said the said Robert Jack part him, there on unlawfully then and there and feloni- Delaney, ravish the said forcibly Peggy Joyce Wilson, ously of defendant to the statutes being contrary act said cases made and and provided, against in such and of the State of Oregon.” dignity peace the state to presented evidence support that on the night indictment disclosed question Peggy in a beer tavern some on employed was 82nd place Portland. Defendant had been a Street frequenter was this and had tavern, acquainted Peggy been during evening in the tavern March 5, 1958. it left tavern before was Defendant closed. Closing 1:00 a.m. testified Peggy was that when time she com- night her duties for entered her car pleted in the was back seat of defendant her car. leave He in his hand to her and pointed held a gun commanded he directed. drive as testified Peggy her to that de- her to drive her car forced into the fendant mountains to an abandoned Molalla logger’s shack in a east timber area. This was in Clackamas cut-over county. the details of the omit assault will alleged We at the their arrival shack. followed Peggy have testi- reached the they after shack the fied that defendant hands and feet with adhesive her tape then bound rape her; her forcibly attempted despite handi- *26 hands and feet she was bound able to resist cap and that defendant did not defendant consummate his at remained the shack the They remainder design. the night. need to relate their is no activity
There the next than to say during course of other day day the car became stuck in the mud. There is conflict any they as to how this occurred. In were forced event, place. They stopped along to walk out of the at a house occupant their route and the thereof drove them to Peggy the house of a friend of defendant in Molalla. episode swore that the entire was the result of force part and threats of force on defendant. At Molalla she caused defendant to be arrested.
The defendant testified in his own behalf. He Peggy admits that he encountered at her car as she purpose left work. He that his claims, however, was push to ask her to suggested they go his stalled car. He said that she place
some for a drink and that driving suggested accompany while she that she him planned camping trip on his to the abandoned shack. trip He admitted the to the shack but contended that voluntary upon Peggy’s part. it was Defendant’s testi- mony everything voluntary coopera- was that was day tive until the car became stuck the mud the next Peggy and that then became alarmed about her hus- principal band’s reaction to her absence. Defendant’s alleged that the defense was assault was a device Peggy concocted to avoid scheme trouble with her husband. jury
The verdict demonstrates believed Peggy and not the defendant. assignment challenges first of error the indict-
ment. The defendant demurred to the indictment on charged ground that it two crimes. One, crime rape secondly, charged and, of assault to commit that it felony. to commit The defendant a threat seizes threatening in the indictment “and words the said Joyce Peggy . . . to then and . Wilson there . .ravish contending charges basis for indictment as the her” threatening felony to commit a the crime viola-
653 tion of The trial court ORS 161.330. overruled by No error committed trial demurrer. was court doing in so. charges single
The indictment but a offense. having The nature of the as been assault is described by by than act. That committed more one form of is, “grasping, seizing, assaulting, grappling, clinching, beating threatening. .” The fact that in . . by alleged dictment describes the assault more than gives one form of act no for the defendant license intervening attempt strike words and to alter the clear meaning required of the indictment. It is not that an may only charge indictment one means which a may crime have been committed. general single “The rule where offense
may may be committed several means it charged single in a count to have been so committed, ways repugant if the or means are not in [sic]; and provided by this state that when the crime in other it is as states statute may be committed the use may allege of different means the indictment [ORS in 1442, means the alternative: Section L.Or. Laundy, (1922) 132.560]” v. State 103 Or 443, 466, P 290. 204 P do not two
“We
believe
different crimes
in
are stated
the indictment. We think the defend
only
charged
offense.
ants are
with
one
There are
way
in which
two different statements
this
standing
was committed. Either statement
offense
crime;
alone would constitute a
but both statements
only
only
If
would be
one offense.
combined
one
ways
charged
in which the defendants are
having
alleged
they
act
violated the
had been
upon
charge, they
that one
had been tried
could
been tried on an
not thereafter have
indictment
charging
the same
another violation of the act based
* * *”
transaction.
State v.
Gerritson
(1928) 124
The next contends that the court assignment erred the defendant to be on cross- permitting asked examination if he had in intercourse with engaged time at they the were shack. It is Peggy during the that the affirmative to such argued defendant’s answer rendered of a other than question guilty him crime in the indictment. charged It been has mentioned that defendant’s already this defense was that was a lark. Even voluntary on direct did not assert defendant, though examination, that he had intercourse with the implica- had Peggy, there. how this certainly tion was It is difficult to see when was merely could have the defendant it prejudiced that not force but volun- added to his defense emphasis if involved. not was tary, enthusiastic, acquiescence There is no error the assignment. directed at the failure of is assignment third on lesser crime to instruct the jury
the trial court
to so
made
the court
No
was
request
of assault.
at-
called to the court’s
it otherwise
nor was
instruct
rule
former
asked, however,
apply
areWe
tention.
It
said that
error
regardless.
notice
notice the
as to
us to
require
was
prejudicial
error
so
a new trial.
allow
error
if the
even
court,
trial
we doubt
In this case
as to as
instruct
had refused
request,
upon proper
would have been error.
refusal
that such
only
sault
have been
error.
prejudicial
not
it would
are certain
We
only required
An
to a
instruction as
lesser offense is
permits
finding
when the evidence
that an offense
degree
charged may
of lesser
than
have been committed.
(1953)
State Nodine,
v.
679, 687,
1056;
198 Or
259 P2d
(1943)
v. Coffman,
State
171 Or
P2d
166, 171, 136
687;
(1931)
Duffy,
State v.
290, 308,
In the case defendant testified that any any there assault of was no kind with he intent; any Peggy partook any denied conduct toward of contrary, of elements assault. of To as before acquiescence every part he claimed mentioned, of relationship that had reference to the actual crime charged. testimony The defendant’s that after the car got Peggy’s changed nothing stuck attitude has to do or with whether not he her assaulted several hours testimony before. That no more than did cast reflec falsity tion on or the truth claimed assault. It relationship had the actual no direct crime. Consequently, in this it was a case clear-cut issue: Did defendant have assault woman in order to accomplish purpose proceed or did he the consent Ms any route? The does not show in-between. evidence only her all for the If assaulted at it was defendant purpose. no one such circumstances there was Under upon prejudicial in the court’s failure to error instruct Duffy, supra. v. That the lesser crime of assault. State particularly request in- true no for such an when supra. struction was made. v. Nodine, State assignment last is based the admission of highly claims certain evidence which defendant was during prejudicial. exception the trial No was taken complained any now to the of the evidence admission argues poorly that he was de- of. The defendant now appointed purpose and asks fended he not have fair trial. He relies that we find that did (1953) P2d 800; v. 199 Or Bouse, on State supra, and similar eases. Nodine, State it decide if was error admit We find no reason to complained preju- In no it of. event was the evidence sufficiently so warrant a At least not dicial error. is no here to trial because it. There occasion new question. purpose Its was to the evidence in recite Peggy’s some of testi- in certain corroborate, details, any part mony. all of the said that or It could not be particularly challenged had a material bear- evidence falsity Peggy’s story. ing There was or on the truth permit evidence to submitted substantial otherwise story. Peggy’s jury There was or doubt to believe testimony participants sharp of the conflict testimony Peggy of both to corroborate evidence complained The details could not and defendant. The admission evidence does decisive. have been implication that defendant did even not raise *30 fair trial. have a that the trial appropriate mention court
It is preserve every was right careful to to the defendant opportunity adequately present and his The defense. presents every part record in the case of the trial from jury argu- the voir dire examination of the to the final Every ments of counsel. conference in chambers is reported. only exception ais discussion of the law involved on one issue. we are favored Otherwise, complete awith record. The record reflects that the judge presided painstaking thoroughness trial with rights. gave care for defendant’s He to the defendant every possible benefit. any complain
Neither has the defendant reason to appointed of his defense counsel. The record shows proceeded diligence that counsel and care. He was handicapped by intrusions into the case the defend- ant. In the record fact, shows that the defense of the engineered by any case was defendant himself. If they made mistakes were were his own. hesitancy demanding high no
We have stand duty attorneys appointed indigent ards of to defend persons charged upon proper with crime. And, show ing, grant the court has not refused to a new trial when prejudicial the record reflects lack of attention and diligence upon part of such counsel. But when the appointed attorney faithfully discharged duty has his irresponsible we will not listen to and unlicensed abuse. particularly And so when the as record, here, shows patently govern that the defendant has seen fit to being Conduct of his defense. if the So one defended pay piper. desires to run his own show he must attorney appointed Both to defend the defendant attorney prepared presented on trial and the who fully performed duty this their to the defendant. nothing any in this record to There is establish de- requirements parture of a fair from trial. *31 well aware that the defendant him
We are reweigh jury, ns as a evidence, self wants guilty. find him not That we cannot do. The defendant presented jury body all of his evidence to the and that guilty. found him That is conclusive. judgment is affirmed.