State v. Charlton, 42707

• Decision Date: 08 September 1952
• Docket Number: No. 42707,42707
• Citation: 363 Mo. 370,251 S.W.2d 82
• Parties: STATE v. CHARLTON.
• Court: Missouri Supreme Court

Page 82

251 S.W.2d 82

363 Mo. 370

STATE v. CHARLTON.

No. 42707.

Supreme Court of Missouri, en Banc.

Sept. 8, 1952.

J. E. Taylor, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for defendant in error.

LEEDY, Judge.

George Edward (alias Jock) Charlton brings error to review his conviction in the Pike Circuit Court for robbery in the first degree, and his consequent sentence to ten years' imprisonment in the penitentiary. He was represented at the trial by court-appointed counsel, who filed a motion for new trial in his behalf, but they do not represent him on this appeal, his appearance here being by brief pro se. From matters de hors the record it appears that he is presently confined in the penitentiary under his sentence.

The case is here on the record proper, and the only question of any moment is one of statutory construction (that as to which there was dissent in division), i. e., whether the proviso contained in Section 485.100 RSMo 1949, V.A.M.S., authorizes this court to order that a transcript of the court reporter's notes of the evidence or oral proceedings in a criminal case be furnished, at public expense, to an indigent plaintiff in error for the purpose of appellate review. The divisional opinion construed the proviso as being applicable to, and so empowering, this court. Such question was raised by the court sua sponte, and, therefore, was not briefed, nor has it been on the present submission. Because it constituted the only point of difference and the pivot on which the case turned in division, transfer to banc was ordered so that the question might be finally settled.

Chapter 485, RSMo 1949 and V.A.M.S., deals with the subject of circuit court reporters and stenographers to supreme and appellate judges. The proviso in question is a part of Sec. 485.100, regulating charges by such court reporters for transcripts of their notes, and authorizing judges, in their discretion, to order transcripts of the evidence or oral proceedings for their own use, and providing that the reporter's fees therefor be taxed as other costs in the case. The language of the mooted portion of the proviso is: 'provided, that in criminal cases where an appeal is taken or a writ of error obtained by the defendant, and it shall appear to the satisfaction of the court that the defendant is unable to pay the costs of such transcript for the purpose of perfecting the appeal, the court shall order the same to be furnished and the court reporter's fees for making the same shall be taxed against the state or county as may be proper; * * *.' We believe its purpose and intent (and, therefore, the true meaning) will be made to appear upon a consideration of the history of the legislation of which the proviso is a part. It is therefore necessary to notice, at least in summary, the pertinent provisions of those statutes, and this can be done only at the expense of brevity and space.

The then new system of shorthand reporting as a method of preserving the record was extended to circuit and criminal courts in rural counties (45,000 inhabitants or less) in 1887. Laws 1887, p. 144. Two years later that act was replaced by one more detailed and comprehensive, and applicable only to counties of the class mentioned. Laws 1889, p. 293. The proviso first appeared in the 1889 act, and, except for the substitution of three words of equivalent meaning, its language has remained the same throughout the intervening sixty-three years.

The shorthand reporting system was originally applied only in courts exercising criminal jurisdiction in cases of felony in cities having a population of more than 100,000 inhabitants. Laws 1881, p. 106. In Sec. 5 of that act was the proviso '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.' Unlike the later 1889 act, supra, there was no provision in the 1881 statute for taxing the cost against the state or county until so amended in 1907. Laws 1907, p. 440.

Except for the proviso now in question, and the kindred provision of the 1881 act just referred to, there was no provision made in any of the other acts extending the reporter system (to circuit courts in counties of more than 45,000 and less than 150,000 inhabitants, Laws 1883, p. 59; to circuit courts in cities and counties having 350,000 inhabitants, or more, Laws 1887, p. 145; to circuit courts in counties of more than 100,000 and less than 350,000 inhabitants, Laws 1889, p. 291) by which authority was conferred upon any court to order that an indigent defendant in a criminal case be furnished with a transcript either at public expense or gratis.

The three acts last above cited (in parentheses) in substance severally authorized 'any judge' in his discretion to order a transcript of all or any part of the evidence 'for his own use,' the fee therefor to be taxed as costs. But the proviso with which we are concerned continued to be applicable only to counties of 45,000 population or less until 1919, when all of the former acts (except that in relation to courts having jurisdiction of felonies in counties and cities of over 100,000), which then appeared as Articles I, II, III and IV of Chap. 113, R.S. 1909, Secs. 11231-11258, were repealed, and a new chapter enacted in lieu thereof, which act, including the proviso, was made applicable on a statewide basis, at least as to all circuit courts, Laws 1919, p. 713. The statutes continued to remain in this state (except for amendments of an inconsequential nature) until the article respecting courts having felony jurisdiction in cities and counties of over 100,000 inhabitants was repealed in 1949 by Senate revision bill 1147--revision bills not being published in the 1949 session laws.

The divisional opinion interpreted the proviso as meaning that in criminal appeals the order on the court reporter to furnish defendant a transcript at public expense is to be made by the trial court, but that where a writ of error is obtained by defendant, it is the appellate court which is empowered to make such order, which, in cases of felony, means the Supreme Court. I think the language in question, when considered in connection with the foregoing historical background of the statute of which the proviso is a part, and cognate statutes, indicates that the legislature, by the use of the words 'the court,' intended to, and did refer to one and the same tribunal, whether review was sought by appeal or writ of error. I can place no other construction upon the followng language of this court in State v. Pieski, 248 Mo. 715, 720, 154 S.W. 747, 748: 'By the vaguest statutory inference alone can it be said that this [the Supreme] court has the right * * * to permit the prosecution of an appeal without the payment of costs. These inferences arise only from the provisions of our laws providing for the duties of official stenographers in the circuit courts of the state. Sections 11246, 11257, 11263, R.S. 1909. By virtue of these sections, the trial court, in case of an appeal or suing out of a writ of error in a criminal case, if 'it shall appear to the satisfaction of the court that the defendant is unable to pay the costs of such transcript for the purpose of making the appeal, the court shall order the same to be furnished, and the stenographer's fee for making the same shall be taxed against the state or county, as may be proper.'' (Emphasis supplied.)

The provision in question does not now appear, nor has it ever appeared in the Code of Criminal Procedure where, if it were intended to apply to both trial and appellate courts, it would logically be expected to be found. The framers of that code were careful to specify in other particulars, when dealing with appeals and writs of error, that either the appellate or the trial courts were authorized to do certain acts. For example, see Sec. 547.130 providing: 'No such appeal or writ [of error] shall stay or delay the execution of such judgment or sentence * * * unless the supreme court * * * or the court in which the judgment was rendered * * * shall make an order * * *.' But even more persuasive to me is the fact than an appellate court, unlike the trial court, does not have the facilities for determining the question of whether or not the defendant is able to pay the cost of such transcript. Defendant has the burden of satisfying the court on that question as a condition to his right to a transcript without cost. How can it be tried in this court without requiring witnesses to come to Jefferson City, convening the court, and hearing the proofs pro and con? I simply do not believe this was ever intended to be done merely because a defendant in a criminal case elected to have his conviction reviewed by writ of error rather than by appeal. Both modes of review are processes under the appellate as distinguished from the original jurisdiction of this court. State ex rel. McPike v. Hughes, 355 Mo. 1022, 199 S.W.2d 405.

Relator's claim in State ex rel. Martin v. Wofford, 121 Mo. 61, 25 S.W. 851, was not based on the proviso now under scrutiny, but, on the contrary, mandamus was issued to enforce compliance with the kindred 1881 act, Sec. 8256, RSMo 1889, which 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.' (And, as previously noted, without compensation to the reporter.) While it is beside the point, it is, nevertheless, interesting to note that the innovation in preserving the trial record as introduced by these statutes appears to have met with something less than judicial approbation. Note the criticism of this court in 1895 in the Wofford case, 121 Mo. loc. cit. 74 and 25 S.W. loc. cit. 854: 'The state has adopted this system of stenography. It is very onerous and expensive on litigants who...