State v. Superior Court for Pierce County

• Decision Date: 16 July 1931
• Docket Number: 23147.
• Citation: 1 P.2d 331,163 Wash. 459
• Parties: STATE ex rel. MARR v. SUPERIOR COURT FOR PIERCE COUNTY et al.
• Court: Washington Supreme Court

1 P.2d 331

163 Wash. 459

STATE ex rel. MARR v. SUPERIOR COURT FOR PIERCE COUNTY et al.

No. 23147.

Supreme Court of Washington, En Banc.

July 16, 1931

Original proceeding by the State of Washington, on the relation of Andrew Marr, on an alternative writ of certiorari, wherein relator prayed that a peremptory writ issue requiring the Superior Court for Pierce County and Hon. Ernest M. Card Judge thereof, to direct the official court reporter in and for Pierce County to furnish a longhand copy of testimony in a criminal case upon the ground that the relator is indigent.

Peremptory writ denied.

H. E Foster, of Seattle, for relator.

Bertil E. Johnson and H. B. Gardner, both of Tacoma, for respondent.

HOLCOMB J.

In this proceeding in this court on an alternative writ of certiorari, relator prays that the peremptory writ issue requiring respondent judge to direct the official court reporter in and for Pierce county to furnish a longhand copy of the testimony in a criminal case upon the ground that relator is indigent.

In the court below relator filed a motion supported by an affidavit in which he alleged that he is an indigent person, not possessed of any money or property of any character or description and has no means of raising any money; that he has no property save and excepting his personal belongings consisting of a few clothers; that he desires to have the trial and judgment of the trial court reviewed upon appeal by the Supreme Court and that notice of appeal from the judgment of the lower court has been given; that a few of affiant's friends had obligated themselves to furnish assistance in his defense, but they were wholly unable financially to furnish money to cover the costs and expenses incident to the appeal; that affiant is helpless and cannot assist himself.

This affidavit was not controverted by any counter showing on the part of the state, but the trial court denied it upon the grounds, among other things, that although the court had appointed counsel for relator upon his being arraigned thereafter other counsel was employed to assist counsel appointed by the court, by relator or others in his behalf to conduct the defense; that the motion of relator was resisted by the state; and that respondent judge, after duly considering the same and taking into consideration all the facts, records, and files, denied the motion and orally announced as his reason therefor that, in the opinion of respondent judge, justice would not be promoted by furnishing relator with a free statement of facts to be made by the official reporter and paid for by the county treasurer, in that relator had been accorded a fair and impartial trial and in respondent's opinion no grave or prejudicial errors occurred therein.

An averment in the petition for the writ filed here to the effect that relator, being an indigent person and not being possessed of any property or assets of any character or description whatever, was denied in the return of respondent judge; and a further averment that relator had been advised that grave errors appear and exist in the proceedings and in the conduct of the trial and as the result of which the verdict of guilty was returned against him was also expressly denied.

The affidavit of relator also avers that he was prosecuted in he court below by an information charging him with the crime of assault in the first degree, to which he pleaded not guilty; the the trial began on March 9, 1931, Before respondent judge and a jury, and proceeded until the afternoon of March 17, 1931, after which the jury deliberated for approximately twenty hours Before returning into court with a verdict, which verdict was guilty of assault in the first degree, as charged; that thereafter relator presented his motion for a new trial and his motion in arrest of judgment, which motions were denied and judgment was entered upon the verdict sentencing relator to an indeterminate term in the state penitentiary of not less than fourteen years, nor more than twenty-five years.

Relator relies on Rem. Comp. Stat. § 42-5, which, so far as material, reads: 'When shorthand notes have been taken in any cause as in this act provided, if the court, or either party to the suit or action, or his attorney, requests a transcript of the notes into longhand, the official reporter shall make, or cause to be made, with reasonable diligence, full and accurate typewritten transcript of the testimony. * * * Provided, that when the defendant in any criminal cause shall present to the judge presiding satisfactory proof, by affidavit or otherwise, that he is unable to pay for such transcript the presiding judge, if in his opinion justice will thereby be promoted, may order said transcript to be made by the official reporter,' etc.

State ex rel. Coella v. Fenimore, 2 Wash. 370, 26 P. 807, is cited by relator to sustain his contention. In that case the clerk of the court was required to supply a transcript of the record to a defendant who was unable to pay the fee. In the same volume of reports in which the Coella Case was reported is found the case of Stowe v. State, 2 Wash. 124, 25 P. 1085, where, in an opinion written by Judge Dunbar, it was held that the constitutional provision, article 1, § 22, although guaranteeing the right to appeal in all cases without being required to advance any fees or costs Before final judgment, meant that the final judgment there referred to was the judgment of the trial court and that the provision preceding these words relative to the advance of moneys or fees refers to the judgment of the trial court, and that while the right of appeal is preserved to the defendant he is not given the right to obtain the same at the expense of the public treasury. The effect of that case is that the constitutional right of appeal does not include the right to appeal by an impecunious defendant at the expense of the county. In State ex rel. Langhorne v. Superior Court, 32 Wash. 80, 72 P. 1027, that case was cited, as was also State ex rel. Rochford v. Superior Court, 4 Wash. 30, 29 P. 764. They were declared to be conclusive on the subject of the right of an accused to have the costs of an appeal prosecuted by him in forma pauperis to be charged against the county. In State ex rel. Mahoney v. Ronald, 117 Wash. 641, 202 P. 241, 243, a capital case, the constitutional provision above cited was again Before us in a case in which it was sought to compel the trial court to enter an order requiring the prosecuting attorney of King county and the court reporter in the employ of the prosecuting attorney to supply a transcript of the testimony and the proceedings of the trial court. In that case we reviewed the cases of Stowe, Langhorne, and Coella, supra, and reached the conclusion that the constitutional provision guarantecing the right to appeal did not include the right to require the county to defray the cost of an appeal where the defendant is unable to pay. We took occasion to say: 'At common law there was no right of appeal in criminal cases,...