State Ex Rel. Lake v. Bain, Judge

O’Malley, J. The relator in this action has requested that we mandate Judge William D. Bain of *506 Criminal Court No. 1, Marion County, to appoint an attorney to perfect and prosecute an appeal for him, and also to furnish him with a transcript of the proceedings in the cause in which he was convicted and sentenced to prison. This relator was convicted of the crime of robbery on July 27,1944, by a jury in Criminal Court No. 1, Marion County, Indiana. Sentence was pronounced on the same day and the relator commenced to serve a term of not less than 10 nor • more than 25 years in the Indiana State Prison. About two years after his conviction he filed an original action in this court requesting that the lower court be ordered to permit him to file a motion for a new trial. This request was denied on. May 9, 1947, but subsequently on June 3; 1947, the relator filed his motion for a new trial in the lower court. That court denied the motion thus filed" on June 3, 1947. The relator then requested that he be permitted to appeal as a poor person from the overruling of the motion for a new trial arid that a" transcript of the proceedings in the original .case be furnished without cost to relator and further that counsel be appointed at public expense to conduct such appeal. The motion for a new trial which was filed in the matter-below was in the form of the statutory motion for which provision is made in § 9-1’903, Burns’ 1942 Replacement. This statute fixes the time within which the motion may be filed and any 'shch motion filed at a time more than 30 days subsequent to the verdict does not come within the time fixed and may be stricken from the files. *507 *506 Under the common law no motion for a new trial was permitted. Ward v. State (1909), 171 Ind. 565, 86 N. *507 E. 994. This particular right is a creature of the legislature and must be exercised in conformity with the statute. Webster v. State (1935), 209 Ind. 274, 198 N. E. 781. We do not hold that a new trial may not be gained or granted in any other way, but certainly the statutory motion is limited as to reasons and time by the terms thereof. There is authority for holding that under proper circumstances, a judgment may be sét aside so that a motion for a new trial may be filed. Indianapolis Life Ins. Co. v. Lundquist (1944), 222 Ind. 359, 53 N. E. (2d) 338. However, no showing has been made in this action that would place it in the category to which reference is made in the above case. In this particular instance the motion was filed with the clerk of the Marion County Criminal Court and at a later date it was denied. We do not believe that the fact that this motion found its way into the record gave any new or added right to the relator, since its filing was unauthorized at the time it was filed. Ward v. State, supra. In his petition the relator requests that we mandate the judge of the court wherein relator was tried and convicted to appoint counsel and order a transcript. We have a public defender whose duties are set by statute. Under that statute, § 13-1402, Burns’ 1942 Replacement (Supp.), the public defender is to represent all persons in prison, whose time for appeal has expired, and who are unable to pay for such services. Ample provision has been made for securing transcripts and other records which are deemed necessary by the public defender. Of course, he represents only those who have been denied some right, or whose conviction does not seem to have been deserved when all facts are considered. In this matter the relator claims *508 to have been wronged by perjured testimony. If there is merit to his claims, he is not denied the right to present the same, but the state has provided an attorney for him and the judge of the trial court has no duty to provide an attorney and we seriously doubt his right to do so at public expense. Any grievance that he may have, whether it relates to perjured testimony or to some other cause, must be first presented to the trial court in which the relator was convicted and cannot be presented to this court except on appeal. There are other matters that could be discussed in this opinion but the reasons above set forth should be sufficient for our holding in this matter. The petition of the relator is hereby ordered dismissed. Note.—Reported in 76 N. E. (2d) 679.