Opinion
No. 28,671.
Filed May 5, 1950.
1. CRIMINAL LAW — Counsel for Accused — Public Defender — Purpose of Office — Failure of Prisoner To Use Public Defender — Effect. — The office of Public Defender was created for the benefit of those wrongfully imprisoned, as well as to aid the courts in administering justice, but when a prisoner elects to represent himself, the Supreme Court will not indulge in any benevolent presumption in his behalf or waive any rule for the orderly and proper conduct of litigation and appeals. p. 294.
2. 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 action for a writ of mandamus, a petition which fails to have attached thereto certified copies of all pleadings, orders and entries pertaining to the subject matter, as required by Supreme Court rule, is insufficient and will not be considered by the Supreme Court. Rules of the Supreme Court, 2-35. p. 295.
3. MANDAMUS — Jurisdiction, Proceedings and Relief — Petition — Form, Requisites and Sufficiency — Failure To Allege Service of Notice on Attorney General — No Action Commenced — Mandamus Will Not Lie. — In an original action for writ of mandamus to compel the trial court to hear and determine relator's petition for writ of error coram nobis, where relator's petition in the original action failed to allege that notice of the coram nobis petition was served on the Attorney General as required by statute, no action was commenced in the trial court and writ of mandamus would be denied. Burns' 1933 (1949 Supp.). § 49-1937. p. 295.
Original action by the State of Indiana on the relation of Wilbur Sanders against Ollie C. Reeves, as Judge of the Vanderburgh Circuit Court, upon petition for writ of mandamus to compel respondent to hear and determine relator's petition for a writ of error coram nobis.
Petition denied.
Wilbur Sanders, pro se, for relator.
This is an original action for an alternative writ of mandamus to compel the respondent to accept jurisdiction, hear and determine petitioner's petition for writ of error coram nobis, or show cause why the same should not be done.
The petitioner, who is a prisoner in the Indiana State Prison, alleges his petition was prepared without the aid of counsel, which fact is all too apparent from a brief examination 1. thereof. We have often noticed the failure of pauper prisoners to avail themselves of the advice and skilled services of the Public Defender, both in the trial courts and here. If prisoners would stop trying to initiate and prosecute proceedings for a review of their judgments, without the advice and help of the Public Defender, he would have more time to devote to those who may have some merit to their claims, and the trial courts as well as this court would avoid the loss of time involved in considering such cases. The office of Public Defender was created for the benefit of those wrongfully imprisoned, as well as to aid the courts in administering justice, but when a prisoner elects to represent himself, there is no reason for this court to indulge any benevolent presumption in his behalf, or waive any rule for the orderly and proper conduct of litigation and appeals.
Petitioner alleges he filed his petition for a writ of error coram nobis in the Vanderburgh Circuit Court, and that such court, on January 28, 1950, denied the same "for lack of 2, 3. jurisdiction." We are not in a position to decide whether this ruling was correct, for we cannot consider the allegation as true, since there are no "certified copies of all pleadings, orders and entries pertaining to the subject matter" included in or attached as exhibits to the petition, as required by Rule 2-35 of this court. For this defect, the petition here is insufficient. Lester v. Grant Circuit Court (1948), 226 Ind. 186, 78 N.E.2d 785. Nor does his petition here allege that the Attorney General was ever served with notice of the petition in the trial court as required by § 49-1937, Burns' 1933 (1949 Supp.). Until such notice is served the petitioner has no action commenced in the trial court. White v. Marion Criminal Court, Div. 1 (1949), 227 Ind. 167, 84 N.E.2d 588.
The petition is denied.
NOTE. — Reported in 91 N.E.2d 912.