State ex rel. Miller v. Daily
| Decision Date | 31 October 1869 |
| Citation | 45 Mo. 153 |
| Parties | STATE OF MISSOURI ex rel. WM. P. MILLER, Relator, v. PETER P. DAILY, CLERK OF ST. LOUIS CRIMINAL COURT, Respondent. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court.
Peacock & Hart, for relator.
Patrick & Drummond, for respondent, cited People v. Rockwell, 2 Scammon, 3; People v. Harlem, 29 Ill. 43; Knapp v. Lambert, 3 Gray, 377; Purdy v. Peters, 23 How. 328; 15 Abb. Prac. 160; Gardner v. Gardner, 2 Gray, 434; Carpenter v. People, 3 Gilman, Ill., 147; Sans v. People, id. 338; King v. Fry, 1 Leach's Crim. Cas. 129; 1 Chit. Crim. Law, 482; Rex v. Clark, 3 Burrows, 1308; Hullock's Law of Costs, § 220, n. 1.)
The relator was convicted of a felony in the St. Louis Criminal Court, appeals to this court, and the clerk refuses to send up a transcript. To an alternative writ, directing him to make out, certify, and return a transcript of the record as required by law, he replies that he has made it out, certified it, and has offered to return it to this court upon payment by the relator of the fees due for making it, which he refuses to do.
Having given an opinion adverse to the claim of the clerk, we are asked to review it, and have given the matter new consideration. An appeal and supersedeas was allowed by the Criminal Court upon probable cause, or so much doubt as to render it expedient to take the judgment of this court upon the judgment below (Gen. Stat. 1865, ch. 215, § 3), and there the case rests. How is the defendant to get into this court? The matter is disposed of, so far as the Criminal Court is concerned, and he might be very well satisfied to let it remain as it is with the sentence unexecuted. The case can only come here by a transcript, which, by section 16 of chapter 215, the clerk is imperatively required to make, certify, and return to the office of the clerk of this court. In civil cases, if the appellant fails to see that his transcript is filed, the respondent may produce one and take judgment; but in criminal cases, if it is not sent by the clerk upon supersedeas, according to the requirement of section 16, or not produced by the appellant when there is no supersedeas, according to section 17, I know not how the case will get here, or how the sentence is to be executed.
If the clerk's duty is limited by the ability or willingness of the accused to pay him for the transcript, he need only to procure the allowance of the supersedeas, and then postpone indefinitely or defeat altogether the execution of the sentence. There is a marked distinction in appeals where there is a supersedeas and where there is none. In the latter case (section 17) the transcript is to be “made out, certified, and returned on the application of the appellant or plaintiff in error, as in civil cases,” and it may, perhaps, be reasonably inferred that the clerk would have the right to require his fee before delivering it to him, though that question we are not called upon to decide. In the one case the appeal comes here by the action of some court or judge, and the State is interested in its speedy decision, while in the other it is brought by the defendant at his option.
The respondent to this relation objects to any inference as to his duty from the difference in the requirements of sections 16 and 17, inasmuch as the latter section requires the transcript to be returned on application of appellant, “as in civil cases,” and the requirement as to sending it up in civil cases is substantially the same as in said section 16. (See section 19, chapter 172.) If this requirement in relation to civil cases stood alone, there would be force in the argument, but there is another provision which modifies the provisions of section 19, chapter 172, and both taken together imply an active agency in the appellant. I refer to section 29, chapter 135, Gen. Stat. 1865, which says that “the appellant shall cause to be filed in the office of the clerk of the Supreme Court, at least fifteen days before the term of such court to which the appeal is returnable, a perfect transcript,” etc. No such duty is imposed upon the appellant in criminal cases when a supersedeas has been allowed; nor is it contemplated that he has any active agency in bringing his case into the appellate court. In this view, if this relator had not desired a review of the judgment below, and applied for this writ, it would have become the duty of the attorney for the State to...
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