State ex rel. Martin v. Wofford
| Decision Date | 13 March 1894 |
| Citation | 25 S.W. 851,121 Mo. 61 |
| Parties | State ex rel. Martin v. Wofford, Judge |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
Thomas N. Williams and Peter Bell for relator.
(1) The 8256th section of the Revised Statutes of Missouri [Ed. of 1889], amongst other things, provides as follows: "and provided that in cases of appeal and on motion for new trial the transcript of the evidence shall be furnished to the defendant upon the order of the court without cost to the said defendant." (2) This transcript must be furnished either by the clerk or the stenographic reporter. (3) The contention that the stenographer was appointed under the act of the general assembly approved the fifteenth of March, 1887 (R. S. 1889, section 8245), and that said act makes the stenographer subject only to the provisions of law applicable to circuit courts of counties having more than forty-five thousand and less than one hundred and fifty thousand inhabitants is unsound. It is a mistake to say that Jackson county, in 1887, was not a city of more than one hundred thousand inhabitants. The census taken by the city in 1885 showed its population to exceed that number. The taking of said census was fully authorized by the act of the legislature of March 28, 1885 (acts pp. 63, 64). Hence, at the time the act of 1887 was passed, and under which the stenographer was said to be acting, Kansas City had over one hundred thousand inhabitants, and the act of 1881, page 106 section 8256 of Revised Statutes, 1889, was in full force.
Marcy K. Brown and J. J. Williams for respondent.
(1) Section 8251, Revised Statutes, 1889, has no application to Jackson county. It is the last section of the article referring to stenographers in counties having forty-five thousand inhabitants or less, and therefore does not apply to a county with over one hundred thousand inhabitants. (2) Sections 8234 and 8237, Revised Statutes, 1889, prescribe the duties of stenographers in counties such as Jackson, but neither of these sections anywhere even intimates a power on the part of the court to order the stenographer to transcribe the evidence at the trial for a bill of exceptions except on payment of the fees therefor; but section 8237 does provide that after the bill of exceptions has been settled, the stenographer may be required to file in the office of the clerk of the court certified copies thereof, to be paid for at the time of making the transcript and copy by the party at whose instance the same is made, this amount to be taxed as costs to abide the result of the suit. (3) Section 8234 requires the stenographer to furnish to any person a transcript of evidence upon payment to him of the fees provided in section 8236. (4) If relator is correct, the stenographer at Independence must be "well skilled in the art of stenography" and must have had two years' of actual practice in court reporting, and is a sworn officer of the court, while the stenographer at Kansas City need not possess those qualifications. Sections 8233, 8252, supra. (5) If we are correctly advised, the expression "courts having jurisdiction in cases of felony" defines one criminal court in St. Louis and excludes another. To make a law embrace in its provisions the criminal court of Jackson county, no such circumlocution was necessary; the term "criminal court" defines it. Again, the provision in sec. 8253, directing that the stenographer be paid by the city treasurer, leaves no room for doubt that the law was passed for cities governed as St. Louis is.
Mandamus.
This is a proceeding to obtain a peremptory writ of mandamus against the judge of the criminal court of Jackson county, to require him to make and enforce his order against the official stenographer of his court, to furnish relator without expense to relator, a full, accurate and complete transcript, in legible English, of all the evidence, including each and all the objections thereto with each and all the rulings of the court thereon, and the exceptions taken to the rulings of said court in the cause wherein the state of Missouri is plaintiff and the relator, Philip Martin, is defendant, in the criminal court of Jackson county, and heard, and tried before a jury in said court on the twentieth day of October, 1893.
The petition avers, and shows that Philip Martin, the relator, and one Frank Lyle, were jointly indicted in said criminal court for murder in the first degree; that a severance was granted, and on the twentieth day of October, A. D. 1893, relator was put on his trial before a jury and was convicted of murder in the first degree. Relator further avers and shows to the court, that Kansas City is a city situate in said Jackson county, in the state of Missouri, having a population of over one hundred thousand inhabitants and has a court known and designated, "the criminal court of Jackson county" and that said court has jurisdiction in cases of felony; that the Honorable John W. Wofford is the duly elected, qualified and acting judge of said court and that Jacob B. Young is the duly appointed and acting official stenographer of said court; that on the trial of relator on the twentieth day of October, 1893, for murder as aforesaid, said Jacob B. Young, the said official stenographer was present in court and took full and complete shorthand notes of all the evidence introduced in said trial of said court both on the part of the state and on the part of the defendant together with the objections to the evidence and the rulings of the court thereon, together with the exceptions to the said rulings of the court thereon.
It is further alleged that relator within four days filed his motion for a new trial, which was on the ninth of December, 1893, overruled by said court, to which relator duly excepted, and filed his affidavit for appeal to this court, which was duly granted, and thereupon said court extended the time for filing a bill of exceptions in this cause until the first day of February, 1894, and that afterwards, on the thirty-first day of January, 1894, said time for filing was extended until March 10, 1894. It is then alleged that relator is only nineteen years old, is wholly without means or property of any kind; that in consideration of his poverty, the court appointed him counsel, who has rendered his services without fee or reward; that it is absolutely necessary for relator to have a complete transcript of the evidence given on the trial before he can prepare his bill of exceptions; that he has applied to the stenographer for a copy thereof, and he refuses to furnish the same without being first paid the legal fees therefor; that neither petitioner or his counsel have the means in their power to raise the necessary fees for said transcript; that on the thirtieth day of January, 1894, relator filed his motion supported by affidavits asking said court to grant further time to your petitioner and to make an order on said official stenographer to furnish relator a full and complete transcript of all the evidence on said trial, together with all exceptions thereto and rulings thereon, without expense to relator, which said motion the court sustained as to extending the time but, having duly considered, on February 6, 1894, overruled and still refused to grant or make said order on said stenographer; that, unless this court shall direct said criminal court to grant said motion and make said order on said stenographer, relator will be without remedy and his appeal useless.
An alternative writ duly issued returnable on the nineteenth of February, 1894, at which time Judge Wofford made a return and filed a demurrer, both of which tender the single issue that, admitting all the facts averred, there is no law by which said judge is empowered to make said order and require of his said stenographer a copy of the said evidence, exceptions and rulings, as asked in the said motion therefor. The return and demurrer of the judge of the criminal court tender an issue of law only.
By an act of the General Assembly of this state, approved March 19, 1881, entitled "An act to authorize the appointment of stenographic reporters in courts exercising criminal jurisdiction in cases of felony in cities having a population of more than one hundred thousand inhabitants," and now incorporated in the Revised Statutes of 1889, under the title of "article 5," of chapter 153, it was provided that "in cities having a population of over one hundred thousand inhabitants, courts having jurisdiction in cases of felony shall have a stenographic reporter, such reporter to be appointed by the court, to hold his office from month to month, during the pleasure of said court, or until removed for cause shown." R. S. 1889, sec. 8252.
By section 8255 said reporter is required to "attend upon said court, as directed by the judge thereof, and shall take accurate shorthand notes of the evidence, proceedings had, instructions given by the court, and arguments made, and all other pertinent matter." In all criminal examinations other than regular trials, he is required to turn over his notes at once to the prosecuting officer. But all other shorthand notes taken by him shall be filed in the clerk's office, and thereby become part of the records of the office and whenever required by the clerk it is made the duty of the reporter to transcribe the said notes in legible English, and it is specially provided "that in cases of appeal and on motions for new trials, the transcripts of the evidence shall be furnished to the defendant upon the order of the court without costs to said defendant." R. S. 1889, sec. 8256.
If this act of 1881 applies to the criminal court of Jackson county it is very clear that relator's application entitles him...
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