Riley v. State

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Riley v. State, 49 Ariz. 123, 65 P.2d 32 (Ariz. 1937)
• Decision Date: 23 February 1937
• Docket Number: Criminal 846
• Parties: FRANK RILEY, Appellant, v. STATE OF ARIZONA, Respondent

65 P.2d 32

49 Ariz. 123

FRANK RILEY, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 846

Supreme Court of Arizona

February 23, 1937

APPEAL from an order of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Order appealed from affirmed.

Messrs Favour & Baker, Mr. A. M. Crawford, and Mr. Charles P. Elmer for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, and Mr. Jack Choisser, Assistants Attorney General, for Respondent.

OPINION

LOCKWOOD, J.

This is an appeal from an order of the superior court of Mohave county, denying the application of Frank Riley, hereinafter called defendant, for a transcript of the reporter's notes, under the provisions of section 5141, Revised Code of 1928. The facts of the case, so far as necessary for a determination of this appeal, are not in dispute and may be stated as follows: Defendant was convicted of the offense of assault with a deadly weapon on February 29, 1936, and was duly sentenced under the verdict. Notice of appeal was served and filed in a timely manner, and defendant, being advised by counsel he had a good ground of appeal, made an affidavit pursuant to section 5141 supra, that he was unable to pay the costs of the transcript of the evidence, and asked that it be furnished at the expense of the county, as provided by said section. The county attorney demanded an examination of the defendant as to his ability to pay the cost, which was held before the court, and an order was made in the following language:

"The court orders that Defendant's request for the record of this case, including a transcript of the evidence, to be sent to the Clerk of the Supreme Court at the expense of Mohave County, is denied."

Following said order, the clerk of the court refused to transmit the record unless the costs provided by statute for certifying thereto were paid. Defendant applied to this court for a writ of mandamus, compelling the clerk to transmit the record as it stood, and we held in the case of Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749, that the clerk was not authorized, under the circumstances, to send up the record either in whole or in part until the costs were taken care of either by payment or under section 5141, supra. In some manner defendant secured sufficient funds to pay for the cost of bringing up enough of the record to enable this court to pass upon the validity of the order of the court denying his request for the record at the expense of the county, and the matter is now before us on a direct appeal from such order.

There is but one question for our consideration, and that is whether the trial court erred in denying defendant's request for a transcript of the evidence and record at the expense of the county. In considering this question, it must always be remembered that while every defendant against a criminal charge is entitled as a matter of right, and not of grace, to a hearing held according to law in a court of competent jurisdiction upon the question of his guilt or innocence, after he has been found guilty in such a court, an appeal is not a matter of right but of grace, given to the defendant by an organic or statutory law, and if the defendant desires to exercise that privilege he must do so in the time and in the manner fixed by law. Villalobo v. State, 17 Ariz. 261, 151 P. 946; State v. Superior Court, 25 Ariz. 226, 215 P. 538. For this reason, a defendant appealing may not question the justice of any of the provisions regulating the right of appeal. He must take them "as is" and must perfect his appeal in the manner provided thereby or not at all, unless it appears they violate some specific constitutional right.

The legislature has granted the privilege of an appeal to this court to practically all defendants who have been convicted in a proceeding initiated in a superior court, and even to some where the proceeding commenced in lower tribunals, but it has surrounded this right with certain limitations. Under practically every system of appeal, the proceedings of the lower tribunal are reviewed on an examination of the record of that tribunal, and not by a hearing de novo in the appellate court, and such is the rule in Arizona. It is, therefore, necessary that a record of the proceedings in the lower court be provided, and that this record, or a properly authenticated copy thereof, be transmitted to the court for its consideration on an appeal. The legislature has, in its wisdom, provided that the various public officials whose duty it is to prepare the record on appeal shall demand and must receive certain costs and fees for the preparation and transmission of such record (Rev. Code 1928, § 1461). This is mandatory, and any public officer who prepares such a record and transmits it without receipt of the fees provided by the statute is personally responsible to the county or state, as the case may be, for those fees. An appeal, then, ordinarily involves more or less expense to the appellant even in a criminal case. In this respect it differs from a trial on the merits in the lower court where the defendant, in a felony case at least, must be furnished with everything reasonably requisite for a full defense, regardless of whether he has a penny or can obtain any assistance from friends. Unless, therefore, the legislature has provided some exception to the rule, an indigent defendant cannot effectually appeal his case. That body, recognizing this fact, as a matter of grace adopted section 5141, which reads as follows:

"§ 5141. Record, clerk must transmit; affidavit of inability to pay. Upon appeal being taken to the supreme court the clerk with whom the notice of appeal is filed must, within ten days...