State Ex Rel. Thomas v. Elkhart Circuit Court

94 N.E.2d 485, 228 Ind. 572, 1950 Ind. LEXIS 168

• Court: Indiana Supreme Court
• Decided: October 13, 1950
• Docket: No. 28,724.
• Status: Published

Opinion

Per Curiam.

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 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.