State v. Sallee

• Decision Date: 03 September 1935
• Parties: STATE v. SALLEE.
• Court: Oregon Supreme Court

48 P.2d 770

151 Or. 483

STATE v. SALLEE.

Supreme Court of Oregon

September 3, 1935

In Banc.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Melvin Franklin Sallee was charged with assault with intent to commit rape, and from an adverse judgment, he appeals. On motion for an order requiring trial judge to instruct the official court reporter to make a transcript of the testimony for defendant's use on appeal.

Motion denied.

M. O Wilkins, of Medford, for appellant.

G. A Codding, Dist. Atty., and G. W. Neilson, Deputy Dist. Atty both of Medford, for the State.

KELLY, Justice.

Defendant herein has filed a motion for an order requiring the trial judge to instruct the official court reporter to make a transcript of the testimony for defendant's use on appeal. Such an order, if made, would require Jackson county to pay the expense of such transcript.

In the case of State v. Morgan, 48 P.2d 766, decided contemporaneously herewith, we reviewed the authorities from two sister jurisdictions construing the same statutory provision as that which is contained in section 28-705, Oregon Code 1930; and, in accord with those authorities, we held that unless it is shown that the trial judge abused his judicial discretion in denying to an alleged indigent defendant a transcript of testimony at the county's expense, this court will not grant such a request.

In the trial court, defendant filed a motion for an extension of time for the preparation and presentation of a bill of exceptions for forty days from July 27, 1935, and for an order directing the court reporter to prepare a transcript of the evidence at the county's expense.

The court granted the requested extension of time for the preparation and presentation of a proposed bill of exceptions but denied defendant's motion for an order directing that a transcript of testimony be furnished defendant at the expense of Jackson county.

Defendant's said motion was supported by an affidavit of his attorney to the effect that defendant has no money or property to said attorney's knowledge; that the cost of the transcript of evidence was estimated by the reporter at $312.50, and that defendant's attorney could not prepare a bill of exceptions without the transcript of evidence and instructions of the court.

No showing was made as to the merit of the appeal, nor was any explanatory statement made in support of the assertion that a bill of exceptions could not be prepared without a transcript of the testimony.

We think that as a general rule the right to a transcript of testimony at public expense should be tested by the showing made before the trial court when defendant's application for such transcript is made.

The motion for such transcript, which defendant has filed in this court is based "upon the complete transcript of said cause (exclusive of evidence and bill of exceptions) filed in the Supreme Court, July 26, 1935; it is further based upon the original record, judgment roll, motion for a new trial and motion and affidavit of Defendant praying for an order of the said court for a transcript of evidence at county expense, and orders of said H. D. Norton, (the trial judge) denying the same, it is also based upon the affidavit of Defendant attached to the Motion" etc.

This court ought not to be required to study this complete transcript, comprising 140 pages, and the original record and judgment roll comprising approximately as many more pages together with the motion and its accompanying affidavit, in order, if possible, to ascertain some ground upon which abuse of discretion on the part of the trial court might be based. The burden is upon defendant to disclose such abuse of discretion and unless some exceptional or unusual circumstance intervenes, he should be...