Tegler v. State
| Decision Date | 30 March 1910 |
| Parties | TEGLER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under the provisions of the law in force at the date of this trial the judge who presided at the trial was the only person authorized to settle and sign a case-made, and, such judge having died after the completion of the trial and before the case-made had been settled and signed, the defendant, without fault on his part, was thereby deprived of his constitutional right to present a complete appeal to this court, and is thereby entitled to a new trial.
Appeal from District Court, Oklahoma County; J. G. Lowe, Judge.
Rudolph Tegler was convicted of murder, and appeals. Reversed and remanded for new trial.
J. W Johnson and A. N. Munden, for appellant.
Charles L. Moore, Asst. Atty. Gen., and S. H. Harris, for the State.
FURMAN P.J. (after stating the facts as above).
Counsel for the state insist that this court cannot consider the attempted case-made contained in the record upon the ground that "Judge Lowe, who presided at the trial, was the only person authorized by law to settle and sign the case-made, and that the purported case-made is a mere nullity, and is no part of the record, and cannot be considered for the purpose of determining the alleged errors sought to be presented by it for review." In the case of Spray v. Territory, 6 Okl. 4, 37 P. 1075, the Supreme Court of the Territory of Oklahoma, said: In Bailey v. Territory, 9 Okl. 461 60 P. 117, the Supreme Court of the Territory said:
Section 4742, Wilson's Rev. & Ann. St. in force at the time of the trial in this case, is as follows: "The court or judge may, upon good cause shown, extend time for making a case and the time in which the case may be served; and may also direct notice to be given of the time when a case may be presented for settlement after the same has been made and served, and amendments suggested, which when so made and presented shall be settled, certified and signed by the judge who tried the cause, and the case so settled and made shall thereupon be filed with the papers in the cause; and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects, as if his term had not expired; and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause and certified accordingly." This statute in plain and mandatory terms provides that the case-made "shall be settled, certified and signed by the judge who tried the cause." There was then no provision of law permitting any other judge to perform this duty. It is therefore plain that a case-made attempted to be settled by any other judge would be void, and could not be regarded otherwise than a nullity. It is true that the special session of the Legislature of 1910 did amend the law in this respect, and that in the future, in the event of the death of the judge who tried a case, the case-made may be settled and signed by his successor in office. But this amendment has no application to the case before us. This case must be determined by the law in force at the time that the present case-made was settled. The Attorney General is therefore correct in his contention, and we are unable to consider for any purposes the attempted case-made contained in the record.
If the failure to have a case-made incorporated in the record in the manner required by law is the result of the neglect of fault of a defendant, or of those who represent him then, the defendant could not be heard to complain; neither would this court have power to relieve him against the consequences of such failure. But this is not the state of facts which is now before us. Here there is no case-made in the record, owing to facts for which the defendant and his counsel are in no manner responsible, and which rendered it impossible to comply with the mandates of the law. Our Constitution recognizes the right of appeal in criminal cases, but leaves it to the Legislature to provide the means and method of exercising this right. We are bound by the provisions of law regulating appeals provided by the Legislature. Shall a constitutional privilege conferring a substantial right be denied because some unavoidable accident renders the provisions of law inadequate? Is it not the sworn duty of this court to secure to each citizen of Oklahoma the full and unimpaired enjoyment of all of his constitutional rights, it matters not how humble, poor, and penniless such citizen may be? It would be a contemptible farce to say that the defendant in this case had been granted the full enjoyment and exercise of his right of an appeal to this court, when owing to the death of Judge Lowe, it had become out of the power...
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Dubs v. Northern Pacific Railway Co.
...notes). Missouri Land Co. v. Hastad, 27 N.D. 597; Bruegger v. Cartier, 20 N.D. 72; Elliott v. State (Okla.) 113 P. 213; Tegler v. State, 107 P. 949. Where party has regularly taken exceptions in a cause, and has lost the benefit of them without fault of his own, a new trial may be granted. ......