Richardson v. State

• Decision Date: 01 May 1907
• Parties: RICHARDSON v. STATE
• Court: Wyoming Supreme Court

89 P. 1027

15 Wyo. 465

RICHARDSON v. STATE

Supreme Court of Wyoming

May 1, 1907

ERROR to the District Court, Crook County, HON. CARROLL H PARMELEE, Judge.

Noah T Richardson, having been convicted of murder in the first degree, instituted proceedings in error within the time prescribed by statute therefor, and pending the same, moved that a new trial be granted on the ground that he had been prevented from having the necessary bill of exceptions signed and from perfecting the necessary record for a review of the judgment complained of, without fault on the part of himself or counsel. The material facts are stated in the opinion. The case was heard upon the motion.

Reversed and remanded.

W. S Metz and M. Nichols, for plaintiff in error.

W. E. Mullen, Attorney General; M. L. Gordon, County and Prosecuting Attorney, and E. E. Enterline, for the State.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This case is in an unfortunate condition. Noah T. Richardson was convicted of the crime of murder in the first degree upon an information charging him with that crime at the May, 1906, term of the District Court of Crook County. Upon the denial of his motion for new trial at the same term, he was sentenced to suffer the death penalty, and it was ordered that he be taken to the penitentiary to be there confined until the execution of the sentence, the date fixed for such execution being August 3, 1906. On June 25, 1906, he filed his petition in error in this court for a reversal of the judgment, assigning as error the overruling of his motion for new trial. A summons in error was issued, and thereupon, on the application of plaintiff in error, this court, as required by law, ordered a suspension of the execution of the sentence until the hearing and determination of the proceeding in error or the further order of the court.

Through various applications for an extension of time to file the record and briefs we were advised from time to time that considerable difficulty was being encountered by plaintiff in error in obtaining from the official court stenographer, who had reported the proceedings of the trial, a transcript of the evidence and defendant's exceptions; and we granted several such applications in order that the plaintiff in error might not lose his rights in this court through a failure to file and serve briefs pending the completion of the record. It now appears by affidavits on file, a finding to that effect by the trial judge, and by the admission of the Attorney General and other counsel for the State, that the plaintiff in error has been unable to secure an allowance of a bill of exceptions, and is unable to perfect and file in this court a record showing his exceptions and the errors complained of, through no fault, negligence or laches on his part or on the part of his counsel; and a motion has been filed on behalf of the plaintiff in error herein for an order granting a new trial of the cause on the ground that without fault on his part, but through the delay of the official stenographer in furnishing a transcript of the evidence, and the loss by that officer of the bill of exceptions and his note books containing the shorthand notes taken by him of so much of the evidence as had been transcribed and incorporated in the bill, he has been and is prevented from securing in the court below a bill of exceptions, and from filing in this court a record containing his exceptions.

That motion is not contested. On the contrary, a paper has been filed herein entitled, "Answer and Confession of Error, " signed by the Attorney General, who represents the State in this court, and also by the County and Prosecuting Attorney of Crook County and the special attorney who assisted him in the trial of said cause in the court below. It is thereby admitted that there is manifest error prejudicial to the rights of plaintiff in error in the said proceedings of the District Court in this cause, and that the judgment of the said court should be set aside and held for naught. Thereby also said counsel for the State admit that a portion of the stenographer's notes of the evidence taken upon the trial have been lost or mislaid and that by reason thereof a full and complete transcript of the evidence cannot be prepared, certified and submitted for the consideration of this court, and that this proceeding in error cannot be further prosecuted nor fairly determined in the absence of a complete transcript of the evidence. The Attorney General and the other counsel for the State, therefore, on the grounds mentioned, pray that the petition in error be taken as admitted and confessed, the prayer thereof granted, and the case remanded for new trial; and the Attorney General has frankly stated in open court that the facts, in his opinion, entitle the plaintiff in error to a new trial as the only remedy to prevent the disastrous consequences to him that would otherwise follow the deprivation, without fault on his part, of his right to have the case regularly reviewed upon his petition in error.

In support of the present motion we have been furnished, in addition to such admission of counsel for the State, with the affidavits of counsel for plaintiff in error setting forth the facts in the case in reference to this particular matter, which are not controverted, and also with a copy of an application previously filed in the District Court for a finding by that court or the judge thereof in relation to the loss of the papers referred to. Attached to that application appears to have been an affidavit of the official court stenographer upon which the finding of the district judge was doubtless partly based. That affidavit states in substance that immediately after the denial of the motion for new trial the said stenographer was requested by counsel for plaintiff in error to make a transcript of the testimony in the cause and all other evidence introduced on the trial, with the objections thereto, the rulings of the court thereon, and the various exceptions to said rulings; that he duly proceeded to make said transcript, but by reason of press of business was unable to complete the same within the time allowed by the court for the presentation of the bill of exceptions; that so much of the testimony as had been transcribed, together with the depositions of witnesses which were read upon the trial, was duly presented to the trial judge in a bill of exceptions, and that said bill was thereupon allowed to be withdrawn and was delivered into the possession of the said stenographer to complete the transcription of the evidence; that shortly after the same was withdrawn said stenographer took the same to the Town of Basin (the county seat of Big Horn County) some time in the month of October, 1906, intending at that place to complete the transcription of his shorthand notes of the testimony; that thereafter he either mislaid or lost said bill of exceptions, including the depositions, and also the note books containing his shorthand notes of the testimony previously transcribed, and that he had been unable to find the same after diligent search, and it had, therefore, become impossible to make a transcription of the testimony and evidence in the cause; that the loss of the said bill, depositions and shorthand notes occurred without any fault on the part of the plaintiff in error or his counsel.

The material part of the finding of the trial judge upon this matter is as follows:

"That the said case was tried at the May term, 1906, at Sundance, Wyoming, and the defendant convicted of the crime of murder in the first degree; that on the 18th day of June, 1906, in the same term of court, the motion of the defendant for a new trial was overruled; that the court at that time gave leave to the defendant to prepare and present for allowance his bill of exceptions to and including October 1, 1906; that thereafter and within the time so given, the time for presenting such bill of exceptions was extended to October 11, 1906; that upon that date the said bill of exceptions was duly presented, and was endorsed by the judge presiding at said trial as so presented on that date; but it appeared that the same was not complete, as the stenographer had not completed the transcript of the testimony, and leave was given to withdraw the said bill in order that the same might be completed; that the said bill was then placed in the hands of Timothy E. Kelly, the stenographer who reported the case, in order that the same might be completed; that thereafter, at a time unknown, but before the 12th day of December, a portion of the record so transcribed, together with the original stenographic note books from which the same had been transcribed, containing the testimony of several witnesses who testified on the trial, was either mislaid or lost by said stenographer, or by some unknown person abstracted from his custody, and has not been found; that no duplicate exists of the said record, or the portion thereof which has been lost, and, therefore, the defendant is unable to secure a complete transcript of all the testimony to present with his bill of exceptions; that no further bill of exceptions has been presented to the court or judge." Though the finding does not expressly state that the plaintiff in error has been deprived of a bill of exceptions through no fault of his own, yet we think that fact to be clearly inferable from what is stated.

The motion for new trial was denied June 18, 1906, and time for reducing exceptions to writing was originally given until October 1, and subsequently extended to October 11, 1906 which was well within the period authorized by law for that purpose, since the next term of court in that...