State v. Plunkett
| Decision Date | 12 November 1943 |
| Docket Number | 3403. |
| Citation | 142 P.2d 893,62 Nev. 258 |
| Parties | STATE v. PLUNKETT. |
| Court | Nevada Supreme Court |
Appeal from Seventh Judicial District Court, White Pine County Harry N. Watson, Judge.
Raymond Plunkett was convicted of murder, and he appeals. On motion by the State of Nevada for an order dismissing the appeal and vacating the order suspending execution of the sentence, and on motion by defendant for an order granting him leave to file a memorandum of errors and a bill of exceptions.
State's motion denied, with directions.
C. A Eddy, of Ely, and W. E. Baldy, of Carson City, for appellant.
Alan Bible, Atty. Gen., W. T. Mathews and Geo. P. Annand, Deputy Attys. Gen., and John W. Bonner, Dist. Atty., of Ely, for respondent.
On February 23, 1943, in the Seventh Judicial District Court White Pine County, appellant was convicted of first degree murder, and later sentenced to death. His motion for a new trial was denied. On April 10 he served and filed notice of appeal from the judgment and from the order denying a new trial. On or about April 27 execution was suspended until the hearing and determination of the appeal.
On October 5 respondent noticed a motion in this court for an order dismissing the appeal and vacating the order suspending execution. On November 3 appellant moved this court for an order granting him leave to file a memorandum of errors and a bill of exceptions.
Respondent's motion was based upon the ground of failure to prosecute the appeal, no progress having been made in that respect since said 27th day of April. At the hearing of this motion on November 2 respondent showed that appellant's attorney, Mr. C. A. Eddy, had received, on or about May 1, a copy of the transcript of the proceedings and evidence had and taken at the trial; that on September 1 the district court made an order giving appellant thirty days in which to file a bill of exceptions and memorandum of errors; that no memorandum of errors has been filed nor bill of exceptions filed or settled; and that on said 1st day of September Mr. Eddy informed the trial court that attorney W. E. Baldy, of Carson City, Nevada, was associated with him in this case.
Mr. Eddy testified in part at said hearing that he was appointed by the district court to defend appellant, who was without funds; that he acted as his attorney at the trial, for which he was paid, by order of court, one hundred dollars (the maximum amount allowed by the statute); that for the last three years he has been afflicted with an illness which affects not only certain digestive organs, but his eyes as well; that he had three or four attacks of this illness during the trial, and has had four or five since May; that the only office help he was able to procure since being appointed to defend this case was an inexperienced stenographer, who after three months of training married and quit her employment; that except as aforesaid he has been without help and has done everything he could without funds; that since the trial he has received only $50, all of which has been used for said stenographer, telephoning, and his trip to Carson City to resist this motion; that when his attacks of illness come on, he is unable to attend to business for two or three days; that when he first applied for a copy of the transcript he was refused because he had no funds; that he asked the county commissioners to furnish money to pay for copies of the transcript, one for himself, one for the Attorney General, and one for each of the Supreme Court justices; that the chairman told him that they would give him nothing--if they allowed anything it would be to the district attorney; that thereafter he tried again to get a copy of the transcript, but without avail; that shortly after the return of the district judge to Ely he made an order, about September 1, that a copy be furnished defense counsel; that district judge Watson's statement that witness had had a loan of a copy of the transcript long before September 1 is true, but it was an uncertified copy which is now in Mr. Baldy's possession; that it is true that the transcript was filed with the district court clerk some time prior to September 1; that during the month of September witness had two attacks of illness which delayed him probably a period of ten days; that he was unable to hire any help; that he had come to Carson City to resist this motion without any compensation for his services.
On cross-examination Mr. Eddy testified that he had applied to the district judge for an additional $100, but the application was not granted because that judge was of opinion that he had no authority to do so; that in September witness asked leave to withdraw from the case so he could go to Denver and consult a specialist about his eyes, but this request was later withdrawn, witness stating to the trial judge that he would stay with the case and do the best he could; that at this time Judge Watson told him that Mr. Baldy had asked for additional time, and also told him that if he insisted on withdrawing from the case he would be permitted to do so; that he felt that if he insisted on withdrawing, he would probably be in contempt of court; that he had never asked for any stipulation for additional time within which to prepare and file a bill of exceptions; that from April 27 until September 1 no progress was made for perfecting the appeal; that witness made no appearance in court about October 1, and no bill of exceptions was submitted to the court for settlement until witness offered a proposed bill on October 16; that the district judge in effect denied the offer and suggested that the matter was now in the hands of the Supreme Court; that the bill was not accepted at that time; that the official reporter may have filed the transcript with the clerk about May 1, but she wanted $40 for a copy and witness didn't have the money to put up out of his own pocket; that it wasn't until after he had appeared before the county commissioners, thirty days or more after the transcript was completed, that...
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