State v. Klein , 95 Conn. 451 ( 1920 )

The accused have appealed from the judgment of the Superior Court and from the denial of their motion for a new trial on the ground that the verdict was against the evidence.

They move that this court direct the Superior Court to certify all the evidence in said cause and make it a part of the record, and print the same at the expense of the State, upon the ground that they are entirely without funds to meet the necessary expenses.

Section 5840 of the General Statutes provides that upon the denial of a motion for a new trial for verdict against the evidence, the party making such motion may take his appeal, and thereupon the trial court shall certify to this court all the evidence in said cause and make it a part of the record. This requires the presentation by the appellant to the trial court in all cases of all of the evidence desired to be certified, at his expense, and the procuring from it of such certification and the making of it a part of the record. The statute further provides: "The provisions of section 5831 as to the expense of printing evidence . . . shall apply to appeals taken under the provisions of this section." Section 5831, relating to the procedure upon motions to correct the finding, provides that "the expense of printing any evidence so made part of the record shall be paid by the party taking the exceptions . . . at the actual expense thereof, not to exceed one dollar for each legal page for one copy." Applying this provision to § 5840, we think that, in spite of the lack of clearness and definiteness, its fair intendment is that the printing of the evidence on appeal upon the denial of a motion for a new trial for verdict against the evidence shall be paid for by the party appealing.

No distinction in our practice is recognized between the appeal in the civil and that in the criminal case. But we have long made provision for the defense of an accused who was unable to meet the expenses of such appeal; and § 5840 must be construed with this long outstanding custom in mind.

The resources of an accused should be devoted first to the necessary disbursements attendant upon his defense and appeal, and next to the services of his counsel. When the resources are exhausted and counsel purpose withdrawing, the court should be so apprised at once, and thereupon the public defender takes charge of the cause. If the accused can only pay for a part of the expenses, such sum as he can pay should be turned over to the clerk of the criminal court for such application, and the cause ordinarily be thereafter conducted by the public defender.

Orders for a transcript of the evidence and its subsequent printing should, in the first instance, be made by the criminal court and be subject to review by this court when the discretion of the trial court has been abused. Orders of this nature are not made as of course, but upon a finding that the ordering and certification of the evidence were reasonably necessary to a proper determination of the questions upon the appeal.

In the exceptional case the continuance of the employment of counsel retained by an accused and paid for by him may be permitted by the court, while at the same time the court orders the transcript of the evidence and its printing to be at the expense of the State. The basis of such an order must be not alone the benefit to the accused, but also the benefit to the public. An order of this nature is within the sound discretion of the trial court and reviewable.

The denial of this motion by the Superior Court when presented to it April 28th, 1919, was within its sound discretion. We cannot review it at this late day, nor could we have found upon the record as presented, an abuse of discretion had it been presented to us seasonably.

The grave criminal charge against these accused would lead the trial court to see that the public defender appeared for the accused in case their present counsel withdraw, as they indicate they will. If the public defender should, upon examination of the record, determine that the evidence should be made a part of the record, it would be proper for him, in view of the unusual situation, to renew the motion made in April, 1919, and its consideration by the trial court would be had in the light of this ruling and de novo.

Motion denied.