Jones v. Simms

JOHNSON, Presiding Judge. This ’ is an original proceeding in mandamus, whereby the petitioner seeks an order requiring the district court of Tulsa County to have prepared a casemade of the proceedings in case No. 19664 in said court, wherein the petitioner was convicted on a charge of assault with a dangerous weapon, and sentenced to serve a term of ten years in the State Penitentiary. Petitioner files his petition without the aid of an attorney, and attaches thereto as an exhibit a purported copy of the minutes of the district court of Tulsa County dated October 18, 1963, wherein it is stated: “Motion for appeal on pauper’s affidavit denied as not being in proper form.” To the petition the Respondent had filed an answer, in which he states that the defendant’s request for casemade at the county’s expense is insufficient as a matter of law; and calls attention to the fact that this petitioner had sufficient funds to employ private counsel in his case, and to pay a professional bondsman the premium on his bail of $2500 set on arraignment in the district court; that defendant failed to appear for trial and a bench warrant was issued and his bail forfeited. That thereafter defendant was apprehended, his private counsel withdrew, and other counsel was appointed to represent him. From the petition filed herein, it does not affirmatively appear that petitioner has no property of any kind and that he has no relatives willing to assist him, or that his attorney who represented him is unable to make up a transcript from memory. Brogdon v. State, 38 Okl.Cr. 269, 260 P. 784; Scroggins v. State, 73 Okl.Cr. 388, 121 P.2d 621; 11 A.L.R.2d 615; In re Enslinger, Okl.Cr., 301 P.2d 372. In light of these authorities, we cannot hold that the district court of Tulsa County abused its judicial discretion in refusing to grant petitioner’s request for a casemade forma pauperis. In this connection it has been repeatedly held by this Court that the determination of such a matter is within the sound discretion of the trial court, and that such discretion will not be reviewed unless it appears that it was arbitrarily used or abused. Harris v. State, 10 Okl.Cr. 417, 137 P. 365, 139 P. 846; Brogdon v. State, supra; Hembree v. State, 53 Okl.Cr. 79, 7 P.2d 491; In re Enslinger, supra. Writ denied. BUSSEY and NIX, JJ., concur.