*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., 362 P.2d 464. State, v. cooperative should be prison officials perfecting appeals matter of so assignments are other of error on.the There equal charge of denial properly avoid may not be considered on to which States, tection of the law. Dowd United 206-210, 262, 95 L.Ed.

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.