This court granted a probable cause application to appeal a habeas judgment that was adverse to the prisoner.

Appellant contends here that he was not accorded an appeal to this court from his conviction for murder, that he was an indigent at the time of his conviction and could not employ appellate counsel, that this fact was communicated to his appointed trial counsel, and that he did not voluntarily and intelligently waive his right to an appeal.

We have reviewed the record and transcript, and pursuant to this court’s decision in Thornton v. Ault, 233 Ga. 172 (210 SE2d 683) (1974), we conclude that there was not an intelligent and voluntary waiver by the appellant of his right to appeal to this court from his conviction and sentence.

Therefore, the habeas judgment below is vacated with direction that the appellant be accorded an out-of-time appeal.

Judgment vacated with direction.