Opinion
No. 36296
Decided May 10, 1961.
Mandamus — To obtain bill of exceptions in felony case — Indigent defendant — Writ not available where no appeal pending.
IN MANDAMUS.
The relator was indicted for first degree murder, represented by counsel, tried to a jury, found guilty with a recommendation of mercy, and sentenced to the penitentiary for life. No motion for new trial was filed. No appeal was filed within the 30-day period prescribed by statute, and no motion for leave to appeal has been filed.
Thereafter relator filed in the trial court a motion and request, in forma pauperis, for a copy of the record, including a bill of exceptions. He was furnished a certified copy of all papers, entries and pleadings, but the trial court refused to furnish him a bill of exceptions.
After such refusal, relator brought an action in mandamus in the Court of Appeals to require the trial judge to furnish him with a bill of exceptions. The Court of Appeals dismissed the petition, and on appeal to this court the cause was dismissed for failure to file notice of appeal within time ( In re Lightfritz, 169 Ohio St. 470). On appeal to the federal Supreme Court, a writ of certiorari was denied.
Thereafter the relator instituted in this court the present action in mandamus, against the same person, based on the same facts and requesting the same relief as in the former mandamus proceeding instituted in the Court of Appeals. Relator alleges that he wishes to appeal from the judgment of his conviction; that he will prove "intentional incompetence of counsel, contradictory testimony of state witnesses, and gross misconduct on the part of the prosecution"; and that a transcript and bill of exceptions are essential for the preparation of an appeal.
Mr. Benjamin C. Lightfritz, in propria persona. Mr. Randall Metcalf, prosecuting attorney, for respondent.
Section 2953.03, Revised Code, provides, in part, that "on application by or on behalf of a defendant, after judgment * * * to the clerk of court * * * such officer shall make and cause to be delivered to the clerk of the reviewing court to which the appeal is taken * * * a complete certified transcript of the record." The section provides also for a bill of exceptions in a felony case, the cost of which bill may be paid out of the county treasury because of the poverty of the defendant.
It is apparent that no appeal by relator is now pending. The relief sought here is available, according to the plain language of the above-quoted statute, only where an appeal is pending.
The writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.