State ex rel. Brown v. Thompson

• Decision Date: 07 October 1948
• Docket Number: No. 28486.,28486.
• Citation: 226 Ind. 392,81 N.E.2d 533
• Parties: STATE ex rel. BROWN v. THOMPSON, Special Judge.
• Court: Indiana Supreme Court

226 Ind. 392

81 N.E.2d 533

STATE ex rel. BROWN

v.THOMPSON, Special Judge.

No. 28486.

Supreme Court of Indiana.

Oct. 7, 1948.

Original action by the State of Indiana, on the relation of Robert O. Brown, against Robert E. Thompson, Special Judge of the Jasper Circuit Court, for a writ of mandate directing that the respondent discharge the attorney selected to represent the relator in criminal proceeding and to appoint competent counsel for perfection of relator's appeal.

Petition denied.

Robert O. Brown, of Michigan City, pro se.

Robert E. Thompson, Judge, of Rensselaer, in pro. per.

GILKISON, Judge.

This is an original action by relator in which he avers that he was convicted in the Jasper Circuit Court December 2, 1947, and sentenced to death. That he has appealed from said judgment to this court, and the appeal is now pending, as No. 28418.¹

Relator's complaint is that the pauper attorney provided by the trial court to prepare and complete the appeal is not taking care of the matter, particularly as to briefing the case, to relator's satisfaction. He therefore asks this court to mandate the respondent, the special judge who presided at relator's trial, to discharge the duly selected pauper attorney, who has appealed and briefed his case, ‘and to appoint competentconscientious counsel’ for the perfection of relator's appeal.

Every person accused of crime is entitled ‘to be heard by himself and counsel.’ Art. 1, Sec. 13, Indiana Constitution. Under this constitutional provision if a defendant in a criminal action is so poor that he cannot employ counsel at his own expense, it is a duty of the trial court to appoint him competent counsel at public expense. State ex rel. White v. Hilgemann, Judge, 1941, 218 Ind. 572, 34 N.E.2d 129; Knox County Council v. State ex rel. McCormick, 1940, 217 Ind. 493, 510, 516, 29 N.E.2d 405, 130 A.L.R. 1427;Lloyd v. State, 1933, 206 Ind. 359, 363, 364, 189 N.E. 406;Batchelor v. State, 1920, 189 Ind. 69, 76, 77, 78, 125 N.E. 773;Hendryx v. State, 1891, 130 Ind. 265, 268, 29 N.E. 1131.Burton v. State, 1881, 75 Ind. 477.

The trial court recognized this duty, and appointed counsel for relator who were available for all purposes at and prior to his trial. He also appointed counsel to prepare and present relator's appeal and relator's petition affirmatively shows that the appeal is now pending in this court.

In appointing an attorney for a poor defendant the trial court is not required to appoint an attorney selected by the defendant. Lloyd v. State, supra; Burton v. State, supra. In many cases it may be desirable that a defendant should be consulted and his wishes ascertained and considered. However, the choice of an attorney to represent a pauper defendant is wholly for the sound discretion of the trial court. Lloyd v. State, supra; Hendryx v. State, supra; Burton v. State, supra....