specially concurring.
In my opinion the “rightness” or “wrongness” of the decision in McWilliams v. Gladden, 242 Or 333, 407 P2d 833 (1965), does not have to be decided in this case.
At the sentencing the trial court performed the obligations which are required of a trial court by Von Moltke v. Gillies, 332 US 708, 68 S Ct 316, 92 L ed 309 (1948). This commendable action “saved” the case. Sessions v. Wilson, — F2d — (9th Cir 1966), decided November 28,1966, applied the principle of Von Moltke v. Gillies, supra, to a habeas corpus case of a state prisoner.
*583It is uneontradicted that the defendant was initially charged with burglary and at the hearing on the information requested the assistance of counsel. This assistance was never received and immediately after the request the defendant was taken to the deputy district attorney’s office; within two hours he was brought before a different court upon an information charging a lesser offense, larceny. The second court was never informed of the first charge or the request for counsel. With these facts alone I believe even the rationale of McWilliams v. Gladden, supra, would not support the judgment.
O’Connell, J., joins in this specially concurring opinion.