Opinion
No. A-12369.
September 5, 1956.
Now on this the fifth day of September, 1956, this matter comes on for hearing on the petition of Eugene Whatley for writ of mandamus directed to the District Court of Oklahoma County for case-made. 20 O.S. 1951 § 111[ 20-111].
It appears that said petition for writ of mandamus was heretofore heard in the District Court of Oklahoma County by Honorable Clarence Mills, Judge, on June 21, 1956, as evidenced by transcript thereof filed in the Criminal Court of Appeals. In said transcript, it appears that said attempted appeal is not being taken at this time in good faith for the reason that no motion for new trial was ever filed in the District Court of Oklahoma County, the same being State of Oklahoma v. Eugene Whatley, No. 23685, and at the time of trial statement was made in open court that none would be filed, and pursuant thereto no notice of appeal was ever given, all of which statements and transactions were made in open court with the petitioner present. It further appears that from the said record the defendant has relatives who are able to bear the expense of the said appeal and that his mother financed his defense in the lower court by leaving a sum with the jailor from which the defendant, himself, employed his defense counsel. Under said conditions, it does not appear that the petitioner has met the provisions of 20 O.S. 1951 § 111[ 20-111], or that the Honorable Clarence Mills has abused his discretion in denying the petitioner's petition for case-made at the expense of the State of Oklahoma. Gaines v. State, 61 Okla. Cr. 8, 65 P.2d 422; Scroggins v. State, 73 Okla. Cr. 388, 121 P.2d 621.
It is therefore ordered, adjudged, and decreed that the writ of mandamus herein prayed for should be and is denied.