Opinion
No. 28,199.
Filed April 22, 1946.
1. MANDAMUS — Pleading — Complaint — Allegation of Lack of Knowledge of Judicial Action — Duty of Litigant to Ascertain Fact. — An allegation in petitioner's verified petition for an alternative writ of mandate that he did not know whether his petition for nunc pro tunc entry in respondent court has been acted upon by either granting or denying it was insufficient, for it is relator's duty as a litigant to ascertain such fact and to make a positive averment in his petition concerning it. p. 227.
2. COURTS — Supreme Court — Jurisdiction — Lack of Supervisory Power Over Lower Courts. — The Supreme Court has no general supervisory power over lower courts. p. 227.
3. MANDAMUS — Pleading — Complaint — Allegation of Lack of Knowledge of Judicial Action — Respondent Not Having Duty to Notify Relator of Rulings. — The Supreme Court, under a petition for alternative writ of mandate which alleges that relator is without knowledge as to whether respondent court has acted upon his petition filed therein for nunc pro tunc entry, cannot mandate respondent to notify relator of all future rulings in that court, since the Supreme Court has no general supervisory power over lower courts and all the records of respondent court are public records and relator is at liberty, by himself or by attorney, to examine them and ascertain just what, if any, action has been taken on his alleged petition. p. 227.
4. CRIMINAL LAW — Counsel for Accused — Public Defender — Legal Assistance to Prisoners. — Indiana has taken cognizance of persons in penal institutions of the state who do not have property or funds to employ counsel, and has employed a Public Defender to give legal advice and legal attention to any proper claim they may have. p. 227.
5. CRIMINAL LAW — Counsel for Accused — Public Defender — Services Not Accepted — Effect. — A prisoner in a penal institution who alleges that a hostile feeling exists between him and the Public Defender does not have to accept the services of the Public Defender, but if he does not accept that service he will then have to accept the situation in which he is thus placed by his own free choice, and the State, having provided an attorney for him, has done all it is required to do. p. 227.
6. MANDAMUS — Grounds — Return of Prisoner to Court in Connection With Subsequent Proceedings — Discretion of Trial Judge. — The Supreme Court is without power to order a prisoner returned to the court from which he was sentenced in connection with proceedings subsequently filed therein, since the question of whether the proceedings there pending are such as to require the prisoner's presence is a matter wholly within the sound discretion of the judge of that court, and the discretion thus exercised may be reviewed only on appeal. p. 228.
Original action by the State of Indiana, on the relation of Richard Sweet, against Howard L. Hancock, as Judge of the Park Circuit Court, for a writ of mandate.
Petition Denied.
Richard Sweet, pro se.
Howard L. Hancock, pro se.
Relator, Richard Sweet, pro se, has filed his verified petition in this court for an alternative writ of mandate against Howard L. Hancock, as Judge of the Parke Circuit Court. Among other things he alleges that about February 23, 1946, he filed in said circuit court a verified petition for a nunc pro tunc entry in cause No. 5640 therein. That he does not know whether this petition has been acted upon by said court, by either granting or denying it. If it has been denied he prays that the writ issue requiring the respondent to show cause why the record should not be corrected as prayed for, and that respondent be ordered to notify relator of all future rulings by respondent in any and all applications submitted for filing by relator, and that he "show cause why he should not return relator to the Parke Circuit Court."
This court does not know whether relator's alleged petition has been acted upon by respondent. It is relator's duty as a litigant to ascertain this fact and to make a positive averment in 1. his petition concerning it.
This court has no general supervisory power over lower courts. Therefore, we could not mandate respondent "to notify relator of all future rulings" etc. Since all the records of the 2, 3. Parke Circuit Court are public records, relator is at liberty, by himself or by an attorney of his own employment, to examine such records and thereby ascertain just what, if any, action has been taken on his alleged petition.
In his petition in this court relator also alleges "that there is and will continue to be hostile feeling between the Public Defender and the petitioner, and for that reason the 4, 5. relationship of attorney and client can not exist . . ." From this statement we may assume that relator is not financially able to employ an attorney. The State of Indiana has taken cognizance of persons in relator's situation and has employed a Public Defender to give legal advice, and legal attention to any proper claim they may have. Acts 1945, ch. 38, pp. 81, 82. §§ 13-1402, 13-1405, Burns' 1942 Replacement (Supp.); State ex rel. Cook v. Howard, Warden (1945), 223 Ind. 694, 64 N.E.2d 25. We know nothing about the "hostile feeling" alleged, whether it is real or feigned, but relator does not have to accept the services of the Public Defender if he does not wish to do so. However, if he does not accept that service he will then have to accept the situation in which he is thus placed by his own free choice. Having provided an attorney for him, the state has done all it can be required to do. State ex rel. Fulton v. Schannen (1946), ante, p. 55, 64 N.E.2d 798.
This court is without power to order a prisoner returned to the court from which he has been sentenced. Whether the proceeding there pending, if any, is such as to require the presence 6. of the prisoner, is a matter wholly within the sound discretion of the judge of that court. The discretion thus exercised may be reviewed only on appeal. State ex rel. Vonderschmidt v. Gerdink (1946), ante, p. 42, 64 N.E.2d 579; State ex rel. Fulton v. Schannen, supra.
For the reasons stated relator's petition is denied.
Note. — Reported in 66 N.E.2d 131.