State ex rel. Witte v. Smith

• Court: Indiana Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State ex rel. Witte v. Smith, 220 Ind. 536, 45 N.E.2d 204 (Ind. 1942)
• Decision Date: 10 December 1942
• Docket Number: No. 27749.,27749.
• Parties: STATE ex rel. WITTE v. SMITH, Judge.

220 Ind. 536

45 N.E.2d 204

STATE ex rel. WITTE

v.SMITH, Judge.

No. 27749.

Supreme Court of Indiana.

Dec. 10, 1942.

Original action by the State, on the relation of John R. Witte, against Russell W. Smith, Judge of the LaPorte Superior Court, for a writ of mandate.

Petition for writ of mandate denied.

John R. Witte, pro se.

No appearance for appellee.

PER CURIAM.

Relator by his petition asks respondent to grant relator's requests, first, for the appointment of counsel at public expense, second, for appointment of a special judge and, third, a hearing upon his petition for a writ of error coram nobis now pending in respondent's court. Relator is not entitled to the appointment of counsel at public expense. State ex rel. Jones v. Hornaday, Judge, Ind.Sup., 45 N.E.2d 203, this day decided. He admits in his petition that the writ of error coram nobis may be reviewed only by the court that sentenced him and in which his petition for writ of error coram nobis is pending. In Murphy v. Daly, 1934, 206 Ind. 179, 188 N.E. 769, 770, this court adopted the language of the Supreme Court of Wisconsin as follows: ‘Wherever possible the judge who heard the case should pass upon the allowance of such a writ, because a refusal may in part be based upon his knowledge of the facts that occurred upon the trial.’ In the same case it is said, ‘The object to be attained by a writ of error coram nobis is a new trial, and while it is not a writ of right, yet, in its general features and in its consequences, it is closely analogous to a motion for a new trial.’ It does not...