State v. Reyes
| Decision Date | 05 December 1956 |
| Citation | 304 P.2d 446,209 Or. 595 |
| Parties | STATE of Oregon, Respondent, v. Martin B. REYES, Appellant. |
| Court | Oregon Supreme Court |
Mix & Fenner, Corvallis, for the petition.
Sidney B. Lewis, Jr., Dist. Atty., and James W. Walton, Deputy Dist. Atty., Corvallis, contra.
In an affidavit filed in support of a petition for rehearing it is shown that the appellant moved the trial court for an order directing Benton county to pay the cost of an original and two copies of 'the transcript of testimony, instructions, etc., necessary for the appeal'; that the district attorney objected that the county should not be required to pay the cost of copies of the transcript of testimony and that the court on March 1, 1956, ordered the county to pay 'the cost of an original copy of the transcript of the evidence', etc. It is not expressly stated that the appellant is an indigent person, but, in view of the court's order, we assume this to be the case.
In these circumstances, now called to our attention for the first time, to hold the appellant to a compliance with Rule 30 of the Circuit Court of the Twenty-first Judicial District, which requires service of a copy of the proposed bill of exceptions to be made on the adverse party, would be unwarranted. The objection of the district attorney and the court's acquiescence in that objection had the practical effect of making compliance with the rule impossible. It would, of course, be highly unreasonable to hold that counsel for the appellant were under any duty themselves to bear the expense of procuring copies of the transcript of testimony.
Counsel have renewed their suggestion that the record be remitted to the circuit court for the purpose of correcting the record by incorporting the transcript of testimony, affidavits and exhibits in the bill of exceptions. In view of the facts as they are now known to this court, the motion will be allowed. But the limits of the powers of the circuit judge in this regard, as stated in our former opinion, must be kept in mind. He cannot now settle a bill of exceptions anew, but can only correct his certificate--if, in fact, it is erroneous or incomplete--so as to make it conform to what was actually done. The power to make this determination nunc pro tunc is committed to the circuit judge alone. In addition to the cases cited in our former opinion, see McCann v. Burns, 73 Or. 167, 171, 136 P. 659, 143 P. 916, 1099, 1100; McGregor v. Oregon R. & Nav. Co., 50 Or. 527, 530, 93 P. 465, 14 L.R.A.,N.S., 668; State v. Jennings, 48 Or. 483, 493, 87 P. 524, 89 P. 421.
In the brief accompanying the petition for rehearing there is disclosed an evident misapprehension on the part of cou...
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