In Re the Habeas Corpus of York , 1955 Okla. Crim. App. LEXIS 209 ( 1955 )

POWELL, Judge

(concurring).

I agree that the writ of habeas corpus applied for should not issue.

I can appreciate the position in which original counsel, Tant, was placed when, while he was in process of perfecting his client’s appeal, petitioner York decided to confess his guilt to the charge for which he had been convicted and implicate one Robert O. Hurt, who was also being represented by petitioner’s counsel, though the last representation, from the record before us, was undertaken subsequent to the representation of York.

It is suggested that under the circumstances the appeal in case No. A-12,086, York v. State, Okl.Cr., 281 P.2d 769, by casemade would have been futile. Perhaps so, from facts now before us, but this might not always be the case. We note from the body of the opinion in the above case it is said: “An examination of the petition in error discloses that the questions assigned as error can only be determined by the examination of a case made concerning a certified record of the evidence introduced at the trial. Since the record of the evidence introduced at the trial is not before us, we cannot determine any of the assignments of error. There is nothing in the transcript of the record to show that the judgment and sentence should not have-been rendered.”

The defendant York made a showing in this court that he was a pauper, and ordinarily we would have ordered a casemade at the expense of Oklahoma County, where he had been tried, but the evidence showed that co-defendant Burns and his family had paid Mr. Tant and associates several thousand dollars to defend not only Burns, but York. Under such circumstances we did not feel like requiring the taxpayers to pay for the record.

It turned out that Burns and York testified at the trial of Hurt, and for the State, implicating Robert O. Hurt. A sharp conflict in interest between York and Burns on. one side, and Hurt on the other, developed. And while under the circumstances then appearing counsel may have been convinced that all further efforts in behalf of York would prove futile, still it occurs to me that it was his duty, in addition to the petition in error and transcript already filed, to have narrated such of the evidence heard, by the court that he felt supported his claim of error, and presented the same in proper time to the trial court for settlement, the-same as if the court reporter had typed, out such testimony. The county attorney would then have been forced to submit his version and the trial court would have been compelled to have determined the facts.. Such narration filed would have preserved, the record, and counsel could never have been accused of neglecting his client, as is vigorously charged in petition and brief now before the court. See, for procedure, Ridenour v. State, 94 Okl.Cr. 92, 231 P.2d 395, 401, 402.

Having made possible an appeal by case-made, counsel could then have made application to this court to withdraw from the-case.

While from the matters set out in the opinion herein, I must agree that in this-particular case the appeal even by case-made would have been futile, still I feel that as a matter of principle defendant should have been enabled to have had this court so determine, rather than in effect having such determination made by counsel at a time he was in a position by force of events, even though he could not control such events, of representing clients with conflicting interests.