— We have a letter from the Clerk of the United States Supreme Court enclosing what purports to be an order of that court dated December 16, 1963, reading as follows:
“SUPREME COURT OF THE UNITED STATES
“MACON v. INDIANA
“ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA.
“No. 37, Misc. Decided December 16,1963.
“PER CURIAM.
“The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Indiana for further consideration in light of Lane v. Brown, 372 U.S. 477.”
*271*270Previously, on November 23, 1962 this court handed down an opinion in State ex rel. Macon v. Orange *271Circuit Court (see 243 Ind. 429, 185 N. E. 2d 619) in which we stated the petitioner had filed a paper entitled “Motion for appointment of counsel.” In that opinion we pointed out that the petitioner had court-appointed counsel at public expense in a trial in which he was convicted of second degree murder. The counsel, however, did not file a motion for a new trial. In that opinion we pointed out that there was no allegation or contention that the counsel was incompetent. After qualifying as a member of the bar of this state, we must presume he had the competency to determine whether there were any grounds for a motion for a new trial. It was his duty to file a motion for a new trial if any grounds existed therefor in his opinion as a competent attorney. Willoughby v. State (1960), 242 Ind. 183, 167 N. E. 2d 881, (reh. den.) 177 N. E. 2d 465, (cert. den.) 374 U. S. 832; Lane v. Brown (March 18, 1963), 372 U. S. 477.
Pursuant to the mandate of the United States Supreme Court we have reviewed this matter in the light of Lane v. Brown, supra.
It is our duty to determine and define the law of the State of Indiana, and we hold that where a defendant in a criminal case has failed to file a motion for a new trial, he has no grounds for an appeal to this court. This law is applicable alike to the rich man and the pauper in this state.
There are many cases before trial courts in which no motions for a new trial were ever filed nor an appeal taken. It does not follow that in all those cases a defendant may thereafter, as of right, ask that counsel be appointed and a transcript furnished him at public expense, when under the law of this state, no right of appeal exists. Counsel for *272both the pauper as well as the rich man is aware during trial of any actions which may be grounds for a new trial, and the knowledge of such attorney is the knowledge of the client. A pauper can not claim the beneficial portions of counsel’s services and disclaim the undesirable portions thereof, any more than a rich man may do so. The pauper has no greater rights in this state than a rich man whose counsel has failed to file a motion for a new trial.
What we have said was the applicable law at the time this case was determined. We point out under the new rules of this court (Rules 2-40 and 2-40A), that the petitioner may ask leave to file a belated motion for a new trial and be granted such permission if he is able to make the showing provided therein. Since petitioner had competent counsel during trial and is bound thereby, the grounds for a belated motion would have to be based on matters de hors the record not coming to the attention of his counsel during trial.
Until at least the trial court finds that the petitioner is able to file a belated motion for a new trial, there is no necessity for ordering a transcript at public expense. However, in the preparation of an application to file a belated motion for a new trial, the petitioner, as a pauper, is entitled to have counsel appointed by the trial court to prepare and present such an application.
The respondent herein is directed to appoint counsel for said purpose.
Jackson, J., concurs in result.