Summary
In State ex rel. Witte v. Smith, Judge (1942), 220 Ind. 536, 45 N.E.2d 204, this court held that the petitioner was not entitled to a change of judge.
Summary of this case from State ex Rel. Emmert v. GentryOpinion
No. 27,749.
Filed December 10, 1942.
1. CRIMINAL LAW — Coram Nobis — Petitioner Not Entitled to Counsel at Public Expense. — A petitioner for writ of error coram nobis is not entitled to the appointment of counsel at public expense. p. 537.
2. CRIMINAL LAW — Coram Nobis — Nature of Proceeding — Similarity to Motion for New Trial. — The object to be attained by a writ of error coram nobis is a new trial, and while it is not a writ of right, yet, in its general features and in its consequences, it is closely analogous to a motion for a new trial. p. 537.
3. CRIMINAL LAW — Coram Nobis — Change of Venue Not Allowable. — Petitioner for a writ of error coram nobis is not entitled to a change of venue. p. 537.
4. MANDAMUS — Grounds — Compelling Hearing on Petition for Writ of Error Coram Nobis — Date for Hearing Set — Effect. — Where the only relief to which petitioner for a writ of mandate by the Supreme Court was entitled was a hearing in the lower court on his petition for writ of error coram nobis, which hearing had been set by such lower court, the writ of mandate was denied. p. 537.
Original action by the State of Indiana, on the relation of John R. Witte, against Russell W. Smith, judge of the LaPorte Superior Court for a writ of mandate to compel respondent to grant relator a hearing upon his petition for a writ of error coram nobis pending in respondent's court, and to grant his requests for appointment of counsel at public expense and appointment of a special judge.
Petition for writ of mandate denied.
John R. Witte, pro se.
Relator by his petition asks respondent to grant relator's requests, first, for the appointment of counsel at public expense, second, for appointment of a special judge and, 1-4. third, a hearing upon his petition for a writ of error coram nobis now pending in respondent's court. Relator is not entitled to the appointment of counsel at public expense. State ex rel. Jones v. Hornaday, Judge, No. 27,783, post p. 645, this day decided. He admits in his petition that the writ of error coram nobis may be reviewed only by the court that sentenced him and in which his petition for writ of error coram nobis is pending. In Murphy v. Daly (1934), 206 Ind. 179, 183, 184, 188 N.E. 769, this court adopted the language of the Supreme Court of Wisconsin as follows: "`Wherever possible, the judge who heard the case should pass upon the allowance of such a writ, because a refusal may in part be based upon his knowledge of the facts that occurred upon the trial. . . .'" In the same case it is said, "The object to be attained by a writ of error coram nobis is a new trial, and while it is not a writ of right, yet, in its general features and its consequences, it is closely analogous to a motion for new trial." It does not appear from relator's petition whether or not the present judge of the La Porte Circuit Court was the judge who presided at the trial when relator was convicted. If he was, the reasoning of the Wisconsin quotation is applicable. In any event, because of the analogy between a petition for writ of error coram nobis and a motion for new trial, we think that a change of venue is not permitted. See also State ex rel. Hodshire v. Bingham, Judge (1941), 218 Ind. 490, 33 N.E.2d 771. Since it appears that the only relief to which relator is entitled is a hearing on his application for the writ of error coram nobis and such a hearing has been set for the 12th day of December, 1942, by the presiding judge in said court, there is no occasion for a writ of mandate. The petition is denied.
NOTE. — Reported in 45 N.E.2d 204.