Opinion
No. 37047
Decided November 22, 1961.
Criminal law — Bill of exceptions and transcript — To be furnished indigent defendant, when — Remedies — Mandamus not available as substitute for appeal.
APPEAL from the Court of Appeals for Cuyahoga County.
The relators in this mandamus action, appellants in this court, were tried in the Court of Common Pleas for a criminal offense, found guilty and sentenced. Following their conviction, they perfected an appeal to the Court of Appeals where it is now pending.
Relators filed applications in the trial court, accompanied by affidavits of indigency, requesting the state to furnish at its cost a transcript of the record and bill of exceptions, pursuant to Section 2953.03, Revised Code. A hearing was had on such applications, and the trial court denied them.
Thereafter the instant action in mandamus was instituted in the Court of Appeals, seeking a writ ordering the respondent, the trial judge in the criminal case, to grant relator's applications to have their bill of exceptions and the transcript of the record of the trial of the criminal case paid for by the state and county and to have the amount of such payment taxed as costs.
Respondent demurred to the petition on the ground that it does not state facts which show a cause of action.
The Court of Appeals held that the question of whether the trial court was justified, in the exercise of reasonable discretion, in denying the applications cannot be tested in a proceeding in mandamus and denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. James R. Willis, for appellants Yancey Wilson and Audrey Walker.
Mr. A.L. Kearns, for appellant Sherman Cooper.
Mr. John T. Corrigan, prosecuting attorney, Mr. Bernard J. Stuplinski and Mr. John T. Patton, for appellee.
Section 2953.03, Revised Code, provides in part:
"The judge of the trial court in a felony case may, because of the poverty of the defendant, in the interest of justice, order the bill of exceptions and transcript, or either, paid from the county treasury in the manner provided in Section 2301.24, of the Revised Code, and order the amount in money so paid charged as costs in the case."
It is clear from the above-quoted section that the trial court, in hearing an application for a bill of exceptions and transcript to be paid for by the state, must determine from the evidence presented whether the applicant, by reason of poverty, is unable to pay for the same. To be entitled to the benefits provided by the above-quoted section, the applicant must establish by credible proof, presented at the hearing on the application, that the applicant is not able, by reason of poverty, to prepay the cost of the bill of exceptions and transcript.
The hearing provided for in Section 2953.03, supra, is a special proceeding instituted after judgment, which is appealable on questions of law. Whether the trial court in the exercise of reasonable discretion was warranted in denying the applications can be determined on appeal. The court of Appeals may refuse to allow mandamus as a substitute for appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, acting C.J., DOYLE, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
DOYLE, J., of the Ninth Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.