Application of Yarbrough

1956 OK CR 35, 295 P.2d 826, 1956 Okla. Crim. App. LEXIS 169

Opinion

JONES, Presiding Judge.

This is an original action in habeas corpus instituted by the petitioner, Cecil Yar-brough, for the purpose of securing his release from confinement in the state penitentiary.

The accused is not wholly unknown to this court. Yarbrough v. State, 90 Okl.Cr. 74, 210 P.2d 375; Yarbrough v. State, Okl.Cr., 291 P.2d 369. The last of those cases was decided by this court on December 7, 1955, and involved the identical subject matter which is presented in the action herein. In addition to the matters already presented and discussed in the opinion filqd m said cause, the petitioner now alleges that he was without the aid of counsel for the reason that the attorney which he employed failed to properly protect his rights and prepare a record to present his case on appeal.

The allegations of the petition with reference to the counsel who appeared for the accused in the trial court are absolutely false. The complete record was before us on appeal and counsel, although faced with a hopeless case, did all that could have been expected of him on behalf of the accused and on appeal he filed an able brief presenting some novel questions of law. See Yarbrough v. State, Okl.Cr., 291 P.2d 369, supra.

Where a person has been tried and convicted and his case considered on appeal, he will not be allowed again to present the same issues raised on the appeal by habeas corpus. De Wolf v. State, 96 Okl.Cr. 382, 256 P.2d 191.

The writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.