Opinion
No. 28,724.
Filed October 13, 1950.
1. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Set Forth All Pleadings, Orders and Entries of Trial Court as Required by Court Rules — Petition Insufficient. — In an original mandamus action to compel respondent court to permit relator to prosecute an appeal therefrom as a poor person, relator's petition, which did not contain, or have attached thereto as exhibits, certified copies of any pleadings, orders and entries pertaining to the subject matter in the lower court as required by Supreme Court rule, was insufficient and would be denied. Rules of the Supreme Court, 2-35. p. 573.
2. CRIMINAL LAW — Appeal — Time for Perfecting — Time Expired During Pendency of Disposition of Petition for Mandamus — Time Would Be Extended. — Where a prisoner's time for perfecting an appeal from a criminal conviction expired while the disposition of his petitions to appeal as a poor person and to mandate the trial court to permit him to take such action were pending, the time for filing a transcript and assignment of errors would be extended. p. 573.
Original action by the State of Indiana on the relation of William Arthur Thomas against the Elkhart Circuit Court and Aldo J. Simpson, as Judge thereof, for an alternative writ of mandamus to compel respondents to permit relator to appeal as a poor person from a criminal conviction in respondent court.
Petition denied; time for perfecting an appeal extended.
William Arthur Thomas, pro se, for relator.
It appears from relator's verified petition for alternative writ of mandamus that he was found guilty of burglary in the second degree, automobile banditry, possession of burglary tools with intent to commit burglary, and carrying a pistol without a permit. It was further found that he was a habitual criminal, and judgment for various terms of imprisonment was duly entered.
The petition here seeks to mandate the trial court to permit him to prosecute an appeal as a poor person and to furnish counsel on appeal, after the trial court by its ruling had denied relator's petition praying for such relief.
Thereafter relator presented to this court his verified supplemental petition, which does not contain, or have attached thereto as exhibits, certified copies of any "pleadings, orders and entries pertaining to the subject matter." But considering his sworn allegations as admissions, it appears that the trial court held an additional hearing on his petition and that the state controverted his contention that he was a poor person.
However, by reason of the fact that his supplemental petition does not comply with Rule 2-35 with respect to certified copies, we are unable to know the state of the record in the 1, 2. trial court now, and for this reason the alternative writ should not issue. It does appear from the records here that pending the disposition of the petitions here the relator's time for appeal expired July 18, 1950. Under these facts the time for filing a transcript and assignment of errors should be extended. State ex rel. White v. Hilgemann, Judge (1941), 218 Ind. 572, 34 N.E.2d 129.
The issuance of the alternative writ of mandamus is denied, and relator's time for filing transcript and assignment of errors extended to and including December 23, 1950.
NOTE. — Reported in 94 N.E.2d 485.