People v. Logan, Cr. 5390

• Court: California Court of Appeals
• Writing for the Court: SHINN
• Citation: 137 Cal.App.2d 331,290 P.2d 11
• Parties: The PEOPLE of the State of California, Plaintiff & Respondent, v. Isaac LOGAN and Billy Eugene Wagner, Defendants & Appellants.
• Decision Date: 29 November 1955
• Docket Number: Cr. 5390

Page 11

290 P.2d 11 137 Cal.App.2d 331 The PEOPLE of the State of California, Plaintiff & Respondent,
v.
Isaac LOGAN and Billy Eugene Wagner, Defendants & Appellants. Cr. 5390. District Court of Appeal, Second District, Division 3, California. Nov. 29, 1955.

[137 Cal.App.2d 332] Isaac Logan and Billy Eugene Wagner, in pro. per.

No appearance for respondent.

SHINN, Presiding Justice.

Upon request for appointment of counsel on the present appeal the court referred the matter to the Los Angeles Bar Association Committee on Criminal Appeals for a report to the court as to possible merit in the appeal. The matter was assigned to two members of the committee who have made written report to the court stating that the record had been examined and that in the

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opinion of the attorneys it disclosed no meritorious ground of appeal. Defendants were duly so advised and their time to file a brief was substantially extended. No brief has been filed. Such has been the practice of this court for several years. The services of the committee have been willingly rendered and have been of distinct value to the court.

Appointment of counsel to represent indigent appellants is not a matter of right as a part of due process. It [137 Cal.App.2d 333] is discretionary with the court whether counsel should be appointed and a request for appointment should be denied if it clearly appears from the record that the appeal or other matter before the court is devoid of merit. State v. Sorrentino, 36 Wyo. 111, 253 P. 14; McCue v. Commonwealth, 103 Va. 870, 49 S.E. 623; Haywood v. United States, 7 Cir., 268 F. 795; Applebaum v. United States, 7 Cir., 274 F. 43; Reetz v. People of State of Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Errington v. Hudspeth, 10 Cir., 110 F.2d 384, 127 A.L.R. 1467; Moore v. Aderhold, 10 Cir., 108 F.2d 729; De Maurez v. Swope, 9 Cir., 104 F.2d 758; Gargano v. United States, 9 Cir., 137 F.2d 944; Brown v. Johnston, 9 Cir., 126 F.2d 727; Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, 707. There is no statutory enactment which requires that counsel be appointed. Whenever the record discloses a question of error in the trial or other proceeding which counsel could in good conscience urge in behalf of the client an appointment has been made. Where counsel have not been appointed the court has made an independent study of the record. We have done so in the present case.

The appellants, Isaac Logan and Billy Eugene Wagner, were convicted of two offenses, namely, conspiracy to violate section 11714 of the Health and Safety Code (furnishing or selling a narcotic to a minor), and in a second count a violation of the same section. It was alleged in the information that the defendants committed certain overt acts in furtherance of the conspiracy, and that they feloniously sold marijuana to Lloyd Arthur Epperly. Logan was accused of and admitted a prior felony conviction. This is an appeal from the judgments and from orders denying motions for a new trial.

Lloyd Epperly testified that he was 17 years old; he received marijuana from Wagner on September 20, 1954 in exchange for $15 previously paid and that at the time Wagner gave it to him, the defendant Logan was also present. According to the testimony of Epperly and one George Chosner, Epperly had approached defendants two days earlier, and had asked Wagner to obtain some marijuana for him, stating that a friend of his wanted it. Defendant Logan was present while Epperly talked with Wagner. Later that evening both defendants, together with Epperly and Chosner made an unsuccessful trip from...