c33:No. 32, Docket 28899

SMITH, Circuit Judge
(dissenting):
Judge Burke credited relator’s testimony that appointed counsel quit with permission of the court on the day of' trial because counsel would not present, the case in the manner in which the relator wanted it done since to do so would; only condemn the other two defendants. Counsel for one of the other two was. thereupon appointed to defend relator-also, and the trial proceeded. While it. does not appear from the meager record; of the California trial that the court then knew of the possibility of conflict of interest between the two defendants represented by the same appointed counsel, Judge Burke found a duty to inquire. In this, under the circumstances I think he was correct. Relator faced a maximum of a possible life sentence, and the-trial went forward full speed without inquiry of the reason for original counsel’s - withdrawal, or even an opening statement on relator’s behalf by his new counsel. Of course, relator might better have - raised his present objections at the trial, but he probably was not then so learned .: In the law. Perhaps we would not have credited his testimony which established .a conflict of interest, but rather ascribed It to his prison schooling. However, Judge Burke observed him and did •credit it.
I would affirm.

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