State ex rel. Grecco v. Allen Circuit Court, No. 0-491

• Docket Nº: No. 0-491
• Citation: 238 Ind. 571, 153 N.E.2d 914
• Case Date: November 13, 1958
• Court: Supreme Court of Indiana

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153 N.E.2d 914 238 Ind. 571 STATE of Indiana ex rel. Gerald GRECCO, Relator,
v.
The ALLEN CIRCUIT COURT and James R. Newkirk, Special Judge,
Respondents. No. 0-491. Supreme Court of Indiana. Nov. 13, 1958.

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Robert S. Baker, Public Defender, Indianapolis, amicus curiae.

[238 Ind. 573] James R. Newkirk, Fort Wayne, for respondents.

PER CURIAM.

This is an original action brought by relator asking that respondent be mandated to appoint pauper counsel to represent relator and perfect an appeal from his judgment of conviction for inflicting physical injury in the commission of a robbery, for which he was sentenced to life imprisonment. Relator also asks that respondent be mandated to furnish him a transcript at public expense. We issued the alternative writ.

From the verified petition it appears that relator was tried by a jury and convicted and sentenced to life imprisonment. That respondent judge was the special judge who tried said cause and ruled on the motion for new trial, overruling the same. That relator in the trial of said cause we represented by an attorney of his own choosing, but after the overruling of the motion for

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new trial, the attorney withdrew from the case and refused to perfect the appeal because relator was without funds to pay such attorney. That relator is now confined to the Indiana State Prison and has no money, means, property, or credit with which he can employ an attorney or procure a transcript for his appeal which he desires to take to this court. That relator has personally filed several requests for extensions of time to file transcript and assignment of errors with this court. That relator had written respondent three letters from the state prison requesting respondent to appoint an attorney and provide a transcript at public expense, but respondent's letter of reply, which is made an exhibit, states respondent had no jurisdiction to appoint counsel for relator, but if such appointment were proper, it could only be made by the regular judge of the Allen Circuit Court. [238 Ind. 574] The regular judge was then written by relator from the prison but he also declined relator's request.

Respondent has filed a response to the writ which does not comply with the rules of this court as it is not verified as the rules require. Rule 2-36 of Supreme Court. The response contains argumentative and immaterial matter, and contends this court cannot mandate respondent to impose upon the taxpayers of the county the expenses of an appeal for relator until relator satisfies respondent judge he has a meritorious appeal, citing State ex rel. Crawford v. Owen, 1948, 225 Ind. 601, 77 N.E.2d 123.

An examination of the cited case, however, reveals that it did not involve an appeal taken within the regular time provided by statute, but instead a belated appeal, sought to be taken after the time specified for taking appeals...