Hardin v. State , 28 Okla. Crim. 123 ( 1924 )

This appeal is by partial case-made. The proceedings, with the exception of the transcript of the evidence and rulings of the trial court on the admission and rejection of evidence and the alleged remarks of the trial judge during the progress of the trial, are included in the partial case-made.

But one question appears to be presented by this appeal, to wit: Was it an abuse of discretion on the part of the trial judge, under the circumstances disclosed by the foregoing statement, to deny to defendant without cost to him a transcript of the evidence and proceedings of the trial proper?

Irrespective of whether or not the court funds of the county were exhausted at the time the order was made denying to defendant such transcript, we think, under the showing here made and the finding of the trial court, that it was a manifest abuse of judicial discretion to refuse to make the requested order. In no other way could defendant adequately present for review the numerous exceptions reserved by him during the progress of the trial. That the county was not in a position, at that time, to reimburse the court reporter for transcribing his shorthand notes, we think was not a sufficient reason for refusing the order. The court reporter is an employee of the state and as such receives a salary of $1,800 per annum in addition to the perquisites arising from work of this character. It was more important that this defendant have his trial properly reviewed by this court than that the court reporter be immediately compensated.

In the case of Hutchins v. State, 13 Okla. Crim. 717,167 P. 338, this court held:

"In a criminal prosecution, where the defendant has been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.

"On appeal by transcript from a conviction for murder, it appearing from the record that the plaintiff in error was denied his constitutional and statutory right to perfect an appeal by case-made as a poor person, by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings, and the testimony taken upon the trial, the judgment is reversed and a new trial awarded."

In the body of the opinion it is said:

"In the case of Jeffries v. State, 9 Okla. Crim. 573,132 P. 823, it was held that where a convicted defendant desires to appeal, upon the making of a proper showing to the trial court that he is unable to pay the stenographer for a transcript of the testimony, or the clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant."

In delivering the opinion of the court, Judge Furman said:

"Appellant was tried and convicted of manslaughter in the first degree, and his punishment was assessed at fifteen years' imprisonment in the penitentiary. Appellant gave notice of appeal, and moved the court to direct that the case-made and record should be prepared without expense to him upon the ground that he was without friends and money and was unable to pay the stenographer for extending his notes and to pay the clerk of the court for making up the record. The fact that appellant was a pauper was not contested by the state. But the motion was denied by the court. In this we think there was error. * * * Stenographers are paid by the state $100 per month for their services. They are also allowed to charge liberal fees for extending their notes where the parties desiring such extension are able to pay for the same. But, when a defendant is unable to pay for extending the notes of the stenographer, he is as much entitled to have this done without cost to him as he is to have the services of the sheriff in summoning witnesses or any other court officer in the performance of his duty in such cases. It is therefore the right of a defendant if he is unable to pay for the same to have the stenographer's notes extended without cost, and it is the duty of the trial court to make an order to this effect, and to see that it is obeyed. As this was not done in the case at bar, there is no case-made in the record, and appellant has been denied his constitutional right to have his case reviewed by this court upon the facts. Whether he is guilty or innocent he has this right, and he cannot lawfully be deprived of it."

And again the following:

"The rule announced by this court in the Jeffries Case should by this time be familiar to all who are concerned with the administration of the criminal law. In the case of Harris v. State, 10 Okla. Crim. 417, 137 P. 365, 139 P. 846, it is held that:

"`Where a defendant is able to employ counsel to represent him, and the trial court refused to enter an order requiring the testimony to be extended without expense to the defendant, such refusal will not constitute ground for reversal, unless it affirmatively appears from the record that the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, and that thereby the trial court had abused its discretion.'

"In the case at bar the trial court, in denying the motion, `finds that the allegations of poverty alleged in said motion are true, and that the same are not controverted by the plaintiff; but the court further finds there is no merit in defendant's contemplated appeal.'

"Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its complete protection."

In the case at bar the trial court found that the defendant was a pauper; that there were 21 witnesses examined in the trial for the state and 11 for the defendant; that the probable cost of transcribing the evidence would be from $90 to $110; and that the court reporter refused to transcribe the evidence unless paid by the defendant the sum of at least $90.

It also affirmatively appears from the record that counsel for the defendant could not make a statement of the evidence from memory. In other words, we think it clearly appears that no adequate and accurate "bill of exceptions" necessary for a proper review of the trial could have been had without a transcript of the evidence adduced at the trial, together with all the rulings of the trial court made during the progress thereof.

For such reason we think that there is here shown a clear and manifest abuse of judicial discretion in not making an order to the court reporter to transcribe these proceedings without cost to this defendant, and for such reason the judgment is reversed, and the cause remanded for another trial.

BESSEY and DOYLE, JJ., concur.