Opinion
No. 28,162.
Filed March 19, 1946.
1. CRIMINAL LAW — Appeal — Certiorari — Use in Aid of Appeal. — Certiorari is used not in lieu, but in aid of, appeal. p. 164.
2. CRIMINAL LAW — Appeal — Certiorari — No Appeals Pending — Petition Denied. — Where it was sought by petition for writ of certiorari to have the Supreme Court order up the records in four criminal cases and to review and determine them and reverse the judgments therein, but there was no appeal pending in any of the cases and the time for appeal in each case had long since expired, the petition was denied. p. 164.
Petition in the Supreme Court by Elmer Davis against the State of Indiana for a writ of certiorari to have ordered up the records in four criminal cases.
Petition Denied.
Elmer Davis, pro se.
James A. Emmert, Attorney General, Frank E. Coughlin, First Assistant Attorney General, and Merl M. Wall, Deputy Attorney General, for the State.
In a petition for writ of certiorari Elmer Davis asks us to order up the records in four criminal cases, numbered 15928, 15929, 15930 and 15931, filed September 18, 1933 in the Vigo Circuit Court and disposed of on or before October 2, 1933. In each of these cases Garfield Kelly and Davis were co-defendants. He attaches as exhibits to the petition certified copies of the order book entries and affidavit in each case. These show that in 15928 on September 26, 1933, after a trial in which he was represented by an attorney appointed by the court, he was convicted by a jury, found to be 22 years old and was sentenced for life to the Indiana State Prison for the crime of kidnapping. Number 15929, charging auto banditry, was dismissed October 2, 1933. To 15930, charging robbery while armed with a pistol, he pleaded not guilty on September 18, 1933, but withdrew this plea October 2, 1933, and on his plea of guilty was sentenced to the Indiana State Reformatory for 20 years, the judgment reciting that it was not to run concurrently with any other sentence imposed on him on the same day. This recital refers to 15931, in which on a plea of guilty to an affidavit for robbery on October 2, 1933 he was also given a sentence for 20 years in the Reformatory.
Petitioner seeks by the writ of certiorari to have us review and determine these cases and reverse the judgments therein. These exhibits do not disclose any question arising on the face of the record which could be reviewed. There was neither motion for new trial nor bill of exceptions in No. 15928. Other exhibits in the petition indicate that as late as September, 1945, he had a petition for writ of error coram nobis pending in the Vigo Circuit Court, but it is not disclosed whether that petition has been disposed of or is still pending and concerning the same this petition asks no relief.
Certiorari is used in Indiana, not in lieu, but in aid of appeal, the time for which in these cases has long since expired. There is no appeal pending upon which these records, if 1, 2. before us, would throw any light.
The petition is denied.
Note. — Reported in 65 N.E.2d 488.