State v. Morgan

• Decision Date: 03 September 1935
• Parties: STATE v. MORGAN.
• Court: Oregon Supreme Court

48 P.2d 766

152 Or. 1

STATE v. MORGAN.

Supreme Court of Oregon

September 3, 1935

In Banc.

Appeal from Circuit Court, Clatsop County; Howard K. Zimmerman Judge.

Proceeding between the State and J. F. Morgan. From an adverse judgment defendant appeals. On defendant's motion for an order directing the trial judge to issue an order providing defendant with a free transcript of testimony and proceedings.

Motion denied.

William P. Lord and T. Walter Gillard, both of Portland, for appellant.

Willis West, Dist. Atty., of Astoria, for the State.

KELLY Justice.

Defendant has filed a motion herein for an order directing the trial judge to issue an order providing defendant with a free transcript of the testimony and proceedings taken at the trial of the above cause, and requiring the trial judge to extend the time for perfecting defendant's appeal herein until said testimony and record can be transcribed and an opportunity afforded defendant's counsel to examine said transcript and prepare a proper bill of exceptions thereon.

On the 2d day of April, 1935, defendant made an affidavit requesting the trial court to order the official reporter to furnish defendant with a transcript of the testimony taken by said reporter at the trial of the above-entitled cause. Omitting the title of the cause and the jurat, said affidavit is as follows:

"State of Oregon, County of Clatsop-ss.:

"I J. F. Morgan, being first duly sworn, depose and say that I am the defendant in the above entitled cause, that I am wholly without funds or means, nor can I obtain funds or means with which to defray the cost of obtaining transcript of the testimony taken in shorthand by the official reporter in the above entitled cause, and that I have a good cause of appeal as shown by motion for new trial heretofore filed herein and arguments thereof, and that justice will be promoted by the court herein allowing the accompanying motion which I request, and do hereby request that the official reporter herein be ordered and directed to furnish me with a transcript of the testimony taken by him in shorthand at the trial of the above entitled cause.

"J. F. Morgan."

An oral motion for the relief thus requested was also made by defendant.

The trial court denied said motion on the ground that sufficient cause had not been shown, by affidavit or otherwise, to justify such an order.

The motion for a new trial mentioned in the foregoing affidavit was based upon three grounds:

I. Insufficiency of the evidence to justify the verdict and judgment, and that it is against law.

II. Error in law occurring in the trial and excepted to by defendant herein.

III. Irregularity in the proceedings of the court, jury, and adverse party, orders of the court, abuse of discretion, by which defendant herein was prevented from having a fair trial.

Omitting the title of the cause and the jurat, defendant's affidavit in support of his motion for a new trial is as follows:

"State of Oregon, County of Clatsop-ss.:

"I, J. F. Morgan being first duly sworn, depose and say that I am the Defendant in the above entitled cause and in connection with my motion for a new trial herein and in particular paragraph No. 3 thereof I do aver that as shown on the records and files of this case and in particular by a letter written by me to Honorable Judge H. K. Zimmerman, judge of the entitled court, and delivered to said judge on the 23rd day of January, 1935, said letter also being described as State's exhibit No. 21 herein, I did request a change of judge on the ground that said Honorable Judge Zimmerman was prejudiced against me and at the time I wrote said letter I did not have an attorney to advise me, and further on the 9th day of February, 1935 I did confirm said letter by the filing of a formal affidavit of prejudice as shown by the records and files herein, and on the 9th day of February, 1935, an order was entered herein denying my request of January 23, 1935 for a change of judge, and that by reason thereof there was an irregularity in the proceedings, an abuse of discretion on account of said order by which I was prevented from having a fair trial.

"J. F. Morgan."

Under the common law, the courts had the discretionary power of allowing a party indicted to defend as a pauper. 1 Chitty's Criminal Law, 412, 413; Rex v. Wright et ux., 2 Strange 1041.

Section 28-705, Oregon Code 1930, among other things, provides: "That when the defendant in any criminal cause who shall have perfected an appeal from judgment against him presents to the judge satisfactory proof, by affidavit or otherwise, that he is unable to pay for such transcript, the court, if in the opinion of the judge justice will be thereby promoted, may order said transcript to be made."

The question here presented is whether an abuse of discretion has been shown on the part of the trial judge in denying defendant's motion for a transcript of the testimony under the above-quoted statute.

Section 3777 of the Code of Iowa 1873 (18 Gen. Assem. ch. 195, § 2; section 5029, McClain's Ann. Code of Iowa 1888), contained a provision like the one above quoted from said section 28-705 of the Oregon Code. In construing the above-cited section of the Iowa Code the Supreme Court of that state, being called upon to make an order requiring a transcript of the testimony to be furnished to an indigent defendant, said: "The advisability of making such an order as was asked in this case rests peculiarly within the discretion of the trial judge. He is conscious of the character of the case, the nature of the testimony, the severity of the punishment, and of all the facts and circumstances surrounding the case; and we must presume that his discretion was wisely exercised. He no doubt was fully impressed with the responsibility resting upon him, and has decided the case under his oath, according to the very right of the matter. Evidently the trial judge was of the opinion that justice would not be promoted by making the order. We, of course, do not have the testimony, and are unable to say what questions are presented therein. Such of the record as we do have does not indicate an abuse of discretion on the part of the trial judge." State v. Waddle, 94 Iowa, 748, 64 N.W. 276, 277. Subsequent to the decision in the Waddle Case, the Iowa statute was amended by omitting the clause, "if in the opinion of the judge justice will be thereby promoted."

The state of Washington has a similar statutory provision (Rem. Rev. Stat. § 42-5). In construing this provision, the Supreme Court of Washington says: "The statute before us involves more than the mere indigence of the defendant. It prescribes that if the presiding judge does not think justice will be promoted, he shall not order a free transcript of the evidence for the accused on appeal. Although it is possible, it is not manifest that the discretion of the trial judge was abused in this instance. It cannot justly be said that this usurps the functions of this court, which in such cases are purely appellate, while the superior court is a court of general and exclusive jurisdiction, except for the correction of errors in the matters and ways provided by law. The language of the statute is very broad and vests in the trial judge almost absolute discretion. Its language is: 'if in his opinion justice will thereby be promoted (he) may order said transcript to be made by the official reporter."' State ex rel. Marr v. Superior Court for Pierce County et al., 163 Wash. 459, 1 P.2d 331, 334.

These opinions from Iowa and Washington support the above construction of the Oregon statute, namely, that it is discretionary with the trial judge to determine whether an order should be made for a transcript of testimony at the expense of the county; and, unless the record discloses an abuse of that discretion, the order of the trial judge, denying defendant's motion for such an order, should be upheld.

We find nothing in the record of the instant case showing an abuse of such discretion.

The question stressed by defendant's motion for a new trial is one which may be determined without recourse to the testimony. That question is whether the trial court erred in overruling defendant's motion for a change in respect to the judge who should preside at defendant's trial.

There is no showing by defendant with respect to the alleged insufficiency of evidence. We cannot presume that the evidence was insufficient. There is no showing to the effect that a narrative statement of the facts cannot be incorporated in a bill of exceptions. Both reason and experience impel us to believe that such a course is open to defendant. Such a narrative is not before us. In fact we are without any basis for holding that the trial court abused its discretion in refusing to burden Clatsop county with the expense of a transcript of testimony herein.

To obtain the relief sought herein, the requisite showing by affidavits or other verified statement of facts should be made in the trial court from which facts it would be manifest that in the exercise of judicial discretion the trial judge should furnish defendant with a transcript of the testimony at the expense of the public.

A review of the legislative expression upon the subject of supplying an indigent defendant with a record for the purpose of an appeal is set forth in the American Law Institute's proposed Code of Criminal Procedure, at page 1270, et seq.

In examining statutory provisions of other states upon the subjects of indigent criminal appellants and the duty of the officers of the court to furnish them records for the purposes of appeal, we find none except the two above noted which contain the clause, "if in the opinion of the judge justice will be...