Bailey v. U.S.
| Citation | 104 P. 917,3 Okla.Crim. 175,1909 OK CR 141 |
| Parties | BAILEY v. UNITED STATES. |
| Decision Date | 15 November 1909 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where in a proceeding in error properly instituted, it appears that the record in the case has been lost or destroyed without possibility of substitution, through no fault of the appellant or his counsel, but solely because of the action of the court officials or some accident or act of Providence for which no one is responsible, and without which record the errors complained of cannot be considered, the Criminal Court of Appeals has the power to order a new trial of the cause.
Where a convicted defendant perfects his appeal to a court of last resort, and the record in the cause becomes lost or destroyed without fault on the part of the defendant or his counsel and said record cannot be substituted, a motion to reverse the judgment and grant a new trial is properly awarded to prevent a miscarriage of justice, or the deprivation of the legal right of appeal.
Error from the United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge.
T. J Bailey was convicted of larceny, and brought error to the United States Court of Appeals for the Indian Territory whence the cause was removed to the Supreme Court of Oklahoma, and then transferred to the Criminal Court of Appeals. On motion to reverse judgment and grant a new trial by reason of loss of record. Reversed and remanded.
A. M. Croxton, for plaintiff in error.
Fielding Lewis, Asst. Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the United States.
T. J. Bailey, was indicted, tried, and convicted in the United States Court for the Southern District of the Indian Territory, sitting at Ada, for the crime of larceny. Motions for new trial and in arrest of judgment were duly filed, overruled, and exceptions allowed, and on the 19th day of October, 1906, the court pronounced judgment, and sentenced him to serve a term of two years' imprisonment in the federal prison. A writ of error was allowed to the United States Court of Appeals for the Indian Territory, and the cause was there pending when Oklahoma was admitted as a state. The cause was then removed to the Supreme Court of Oklahoma as by law provided, and, upon the organization of the Criminal Court of Appeals, it was duly transferred by the Supreme Court to this court. The docket entries of the clerk of the Supreme Court show that the record in this cause was delivered to the late Fielding Lewis, as Assistant Attorney General, and that said record has not been returned to said clerk. The cause has been passed from term to term to give the Attorney General's office an opportunity to supply the record. It now appears by the admission of Charles L. Moore, Assistant Attorney General, assigned to represent the state before this court, that this record is hopelessly lost, and cannot be supplied by substitution, and that this unfortunate condition exists through no fault, neglect, or laches on the part of the appellant or his counsel. For these reasons the motion of the appellant to reverse the judgment and grant a new trial is not contested on the part of the state. It thus appears that the record has been lost through no fault of appellant or his counsel, and that it cannot be reproduced or a copy thereof substituted. We are of opinion that the right to have the judgment reviewed, and in case of error reversed vacated, or modified, should not be denied to a defendant when he has complied with all the requirements of the law in perfecting his appeal, and in this case, owing to the unfortunate circumstances assigned, a new trial should be granted as a matter of right and justice.
It seems to be well established, as a general rule, that where a defendant has done all that the law requires in perfecting his appeal, and where the record necessary for a review of the case is lost or destroyed while in the custody of an officer of the court, in order to prevent a possible miscarriage of justice by depriving the defendant of his legal right of appeal, a new trial will be granted. In Crittendon v. Schermerhorn, 35 Mich. 370, Chief Justice Cooley said: "Where a party has lost the benefit of his exceptions from causes beyond his control, it is proper to give him a new trial, and this we have done in some cases where the judge's term of office expired before exceptions could be settled." In Borrowscale v Bosworth, 98 Mass. 34, it...
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Dubs v. Northern Pacific Railway Co.
...of the higher court upon the decision by which he feels himself to be aggrieved, and a new trial may be his only remedy. Bailey v. United States (Okla.) 104 P. 917; Richardson v. State (Wyo.) 89 P. The overwhelming weight of authority is that a motion for new trial may be reheard, vacated, ......