Riley v. Cornwall, Civil 3770
| Decision Date | 16 June 1936 |
| Docket Number | Civil 3770 |
| Parties | FRANK RILEY, Petitioner, v. C. L. CORNWALL, Clerk of the Superior Court of the State of Arizona, in and for the County of Mohave, Respondent |
| Court | Arizona Supreme Court |
Original proceeding in Mandamus. Writ denied.
Messrs Favour & Baker and Mr. Charles P. Elmer, for Petitioner.
One Frank Riley filed in this court an original petition for an alternative writ of mandamus directing C. L Cornwall, Clerk of the Superior Court of Mohave County, State of Arizona, to send to this court the record in case No. 1422, State of Arizona v. Frank Riley. The relief asked for has been denied but the matter involves an important question of procedure in criminal appeals and, even though the alternative writ was not issued, the court thought it well to state in writing the reasons for its action.
The petition alleges in substance that on February 29, 1936, the petitioner was convicted of a criminal offense in the Superior Court of Mohave County; that on March 3d thereafter judgment and sentence were pronounced against him and on March 9th notice of appeal therefrom was served and filed; that on March 21st notice of appeal from adverse rulings made after March 9th was served and filed; that the petitioner was advised that he had a meritorious ground for appeal and, being without means to prosecute it, made an affidavit, pursuant to sections 5141 and 5143, Revised Code of 1928, that he was not able financially to pay the costs of the reporter's notes and of the record on appeal; that a hearing upon this affidavit was had in the Superior Court of Mohave County and that it determined that the reporter's transcript should not be made as requested; that on April 15, 1936, he asked the respondent to transmit the record as it then stood to this court in order that the petitioner might apply for a review of the action of the superior court in refusing to permit the reporter's notes to be transcribed as in such cases provided; that the petitioner, having made an affidavit of his inability to pay the costs on appeal, is entitled to have the record sent to this court for a determination of the facts relating to his lack of financial ability, but the respondent refuses to transmit it and, unless required by this court to do so, the petitioner will, notwithstanding his inability to pay the costs of appeal and the filing of his affidavit to that effect, be deprived of the right to present to this court in any manner the question whether he did comply with the statutes in making the affidavit and whether that affidavit was sufficient and required the clerk to transmit the record.
The petition presents the question whether a defendant, who desires to appeal from a conviction on a criminal charge, makes an affidavit of his inability to pay the costs of the appeal, and after a hearing thereon, is denied the right to have the reporter's notes transcribed at the county's expense, is entitled to have the record as it stands transmitted to the Supreme Court for the purpose of enabling that court to review the order of the superior court directing that the county shall not pay for the transcript.
In article 1, chapter 123 (section 5133 et seq.), Revised Code of 1928, every person convicted in a superior court on an indictment or information is given the right of appeal to the Supreme Court of the state and the procedure set up by which one unable to pay the expense of an appeal may, notwithstanding, have his case reviewed as though he were in a position to take care of that charge himself. Section 5141 of this chapter provides that when an appeal is taken the clerk with whom the notice of appeal is filed must, within ten days thereafter, transmit a copy of the notice and the record in the case to the clerk of the Supreme Court and, "if the appellant shall first make and file his affidavit in the case showing that he is without means, and wholly unable to pay therefor," do so without charge, and include in the record a transcript of the evidence. It then directs the clerk of the Supreme Court, upon receipt of the record, to file it and perform the same serviceas in civil cases without charge. This paragraph then continues:
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Board of Regents of University and State Colleges v. Frohmiller, 5229
...may be used to compel an officer to perform an act only when the law makes the performance of the act the officer's duty. Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749. However, only ministerial, not discretionary, acts officers may be compelled by mandamus, Ackerman v. Houston, 45 Ariz. 293,......
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Covington v. Basich Bros. Const. Co.
...there is no plain and speedy remedy at law. Territory v. Board of Supervisors, Yavapai County, 9 Ariz. 405, 84 P. 519; Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749. In forfeiting this guarantee the highway commission was in the exercise of a discretion vested in it by law. The writ of mandam......
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Sloatman v. Gibbons
...Cal.2d 153, 45 Cal.Rptr. 320, 403 P.2d 728 (1965), we do not believe that mandamus will lie as to the respondent clerk. Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749 (1936). We therefore confine our considerations to the question of whether the trial court had authority to permit the petition......
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Sloatman v. Gibbons
...be used to compel an officer to perform an act only when the law makes the performance of that act the officer's duty. Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749 (1936); State v. Kostura, 98 Ariz. 186, 403 P.2d 283 (1965). It is obvious that the respondent clerk of the court is by law unde......