Opinion
November 26, 1965.
Orlan Bingham, pro se.
B. Robert Stivers, pro se.
Orlan Bingham invokes the original jurisdiction of this Court pursuant to Section 110, Kentucky Constitution. He asserts that the respondent circuit judge has denied him a record of proceedings had pursuant to the petitioner's motion to vacate judgment (RCr 11.42). According to the petition, Bingham has requested a transcript of the record on the motion to vacate for purposes of an appeal to this Court. Petitioner claimed to be a pauper and thus entitled to have the record furnished to him without payment by him of the customary clerk's fees. This Court has sustained petitioner's motion to proceed here as a pauper.
In a response filed by the trial judge there is no denial that Bingham is a pauper. Under such circumstances the trial court has no recourse except to provide a record for use on appeal. The judge's response here states that Bingham had a fair trial and that there was no merit whatever in Bingham's motion to vacate under RCr 11.42. This may be correct, but we are not able to so adjudicate without the RCr 11.42 record before us. Wilson v. Jefferson Circuit Court, Ky., 384 S.W.2d 305.
Accordingly, it is ordered that the respondent cause to be furnished to the petitioner a transcript of the proceedings on the petitioner's motion to vacate so that an appeal may be prosecuted to this Court by petitioner if he so desires.