WHEELER v. CUPP


470 P.2d 957 (1970)

John Marshall WHEELER, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Decided June 11, 1970.

Rehearing Denied July 7, 1970.

Review Denied September 9, 1970.


Attorney(s) appearing for the Case

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Lee Johnson, Atty. Gen., Jacob B. Tanzer, Solicitor Gen., and James A. Sanderson, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ.


FORT, Judge.

This post-conviction proceeding arises out of the defendant's conviction for unarmed robbery, ORS 163.290, and the subsequent dismissal of an appeal therefrom.

The petition under consideration asserts five causes of action. The first claims the improper use at trial of a confession and of an in-custody identification obtained before he was advised of either his right to remain silent or his right to counsel. The case was tried before a jury. An...

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