Moore v. State , 59 Okla. Crim. 372 ( 1934 )

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Pittsburg county and was sentenced to life imprisonment. Defendant was first tried in the early part of 1932, which trial resulted in a disagreement of the jury. He was again tried and the judgment herein appealed from was entered on November 19, 1932. Defendant was granted time to make and serve case-made. He filed notice of appeal and endeavored to procure funds to obtain a transcript of the testimony and the proceedings at the trial. He was not able to do this, and on January 3d filed a poverty affidavit to procure a free record and filed his application for an extension of time in which to make and serve case-made. Both the application for free record and the application for extension of time were contested by the state and both were denied. Defendant then filed in this court a poverty affidavit for free record and an application for an extension of time. Both were contested, and this court ordered defendant's counsel to prepare and submit a case-made. A verified petition in the nature of petition for rehearing was filed, in which it is set out the testimony in said case was voluminous, that about 40 witnesses were sworn and the case closely contested, with many objections and exceptions taken. That the sufficiency of the evidence to sustain the judgment is challenged. That on account of the death of the court reporter, which occurred on April 6, 1932, without his having transcribed his notes, it is impossible for counsel to prepare a case-made which will preserve the testimony or a substantial synopsis of it or preserve the objections and exceptions and the proceedings of the trial. That defendant was not guilty of any delay in procuring a transcript of the testimony and proceedings, but acted diligently to have the record preserved. Contesting this the state made showing that the testimony at the preliminary and also at the first trial had been preserved. That a habeas corpus proceeding at which much of the evidence was taken had also been preserved and all this had been transcribed. That some one of counsel for the state had taken notes during the course of the trial and that the newspapers published daily news reports of the trial made by news reporters who were in constant attention at the trial — all this was tendered defendant's counsel. It was also made to appear that other reporters, using the same shorthand system, were able to read a considerable portion of the notes taken at the trial. Upon this showing the state insisted that defendant's counsel could prepare a substantially correct transcript of the testimony and the proceedings.

The question here presented, in different forms, has been before this court a number of times. Bailey v. U.S.,3 Okla. Cr. 175, 104 P. 917, 25 L.R.A. (N.S.) 860, is to some extent analogous. In this case the appeal was pending in the United States Court of Appeals for Indian Territory, on the admission of Oklahoma as a state it was transferred to the Supreme Court, and on the creation of this court was transferred here. The record for appeal was lost by the Attorney General's office, and this court held that under such circumstances plaintiff in error was entitled to a new trial. The citations state the general rule that where a party has lost the benefit of his exceptions from causes beyond his control, a new trial should be granted. In Tegler v. State, 3 Okla. Cr. 595, 107 P. 949, 139 Am. St. Rep. 976, a case where the trial judge died before settling and signing the case-made, it was held plaintiff in error was entitled to a new trial. The opinion is based on Bailey v. U.S., supra. See in this connection decisions of Oklahoma Supreme Court, Ripey Son v. Art Wall Paper Mill,27 Okla. 600, 112 P. 1119; Duffield v. Ingraham, 35 Okla. 11,128 P. 111; Peck v. McClelland, 65 Okla. 116, 166 P. 78; Laclede, etc., Co. v. Miller, 69 Okla. 242, 172 P. 84. These cases being based on a statute, subdivision 9, § 5033, Rev. Laws Okla. 1910; Cherry v. Brown, 79 Okla. 215, 192 P. 227, 13 A. L. R. 92; Farmers' Merchants' Bank v. Welborn,32 Okla. 1, 121 P. 620.

A similar question was before the court in Elliott v. State,5 Okla. Cr. 63, 113 P. 213, where a reversal was granted because the court reporter lost a part of his notes and was unable to supply a complete transcript. The opinion relies on Tegler v. State, supra, and Bailey v. U.S., supra. Again in Dobbs v. State, 5 Okla. Cr. 475, 114 P. 358, 360,115 P. 370, the appeal was dismissed for failure to file in time, but in discussing a further contention the court said:

"The mere fact that a stenographer may have lost his notes, or that they may have been stolen from him, would not constitute a valid excuse for a failure on the part of the appellant to prepare and serve a case-made. If it did, every judgment entered by any court of record would be at the mercy of the carelessness and dishonesty of the court stenographer. While the stenographer's notes of the testimony constitute the most convenient means of preparing a case-made, yet they are not the only source from which a case-made may be prepared. Even when a case-made is prepared from the stenographer's notes of the testimony, it must still be approved by the judge who tried the case, and he is not bound by such notes, but must still see that the case-made speaks the truth, and he may correct such case-made from memory or from any source that may be satisfactory to him."

In Thornsberry v. State, 8 Okla. Cr. 88, 126 P. 590, the failure to include the testimony in the case-made was sought to be excused and a new trial secured on the grounds the stenographer's notes had been stolen; the court in syllabus 1 held:

"The fact that a stenographer's notes may have been lost or stolen will not excuse the failure of appellant to incorporate the testimony upon his trial in the case-made, and cannot be considered as ground for a new trial."

Again in Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 369, 139 P. 846, where a reversal was sought because of inability of plaintiff in error to procure a transcript of the testimony, the court, speaking by Furman, Judge, said:

"The writer of this opinion practiced law many years in Texas before court stenographers were known in that state, and when, under the law, the evidence had to be written out as a matter of memory by the attorneys and filed in court within ten days from the adjournment of the term of court. The writer never had the least difficulty in preparing his statements of the evidence in his cases, and he knows from personal experience that it can easily be done. In fact he seriously doubts if the employment of court stenographers is at all necessary either in the administration of justice or to the development of lawyers. It has a tendency to breed carelessness on their part; but, be this as it may, the trial court has a large discretion as to when to order the stenographer's notes to be extended without expense to a defendant, and this discretion will not be reviewed, unless it clearly appears from the record that it was arbitrarily used or abused."

In Gibbs v. State, 23 Okla. Cr. 247, 214 P. 745, where a court reporter, after having been paid to transcribe the testimony, absconded from the state and who was then sent the shorthand notes, but who then failed and refused to furnish a transcript, it was held that accused was entitled to a new trial. In Butts v. Anderson, 19 Okla. 367, 91 P. 906, 908, a civil suit, just prior to statehood, the appellant prayed a new trial for the reason that subsequent to the trial and before the record for appeal had been prepared, the court stenographer died and the plaintiff in error was therefore denied his right of appeal. The Supreme Court, speaking by Burford, Chief Justice, denied the prayer, saying:

"The cause upon and for which the court set aside its judgment was that after the trial, and after the judgment had been rendered, the court stenographer who took the shorthand notes of the trial had died, and the defendants, desiring to appeal the case, could find no one who could transcribe the shorthand notes of the deceased stenographer. We know of no law, nor have we been advised of any which empowers the court to grant a new trial because of the inability of the judgment debtor to procure his record or prosecute his appeal. The law provides that the party desiring to take an appeal will prepare a case, setting out substantially so much of the record as will make apparent the errors relied upon, and the service of his prepared case upon the adverse party, who may, if not satisfied with its contents, propose such amendments as he may deem necessary, and upon proper notice by either party the court will settle the case. Upon such a case he may file his petition in error and have the judgment complained of reviewed by the appellate court. While the law contemplates that either party may have the stenographer to transcribe his shorthand notes, upon payment of the necessary fees therefor, it does not contemplate that such is the only method of preparing a record for a case-made."

In the case of Crittendon v. State, 44 Okla. Cr. 415,281 P. 315, it was held that where the shorthand notes of the reporter were lost or destroyed the case should be reversed and remanded. This case cites in support Butts v. Anderson, supra, and Thornsberry v. State, supra, which must have been included by oversight, since both hold to the contrary.

A recent case is State v. Ricks, 32 Idaho, 232, 180 P. 257, 13 A.L.R. 99. This case is thoroughly annotated, pages 102-121. See, also, annotations to Richardson v. State, 12 Ann. Cas. 1048, and annotations to Dumbarton, etc., Co. v. Erickson, 21 Ann. Cas. 258.

Reviewing the cases, it seems impossible to harmonize them fully. Many of them are based on a state statute. Some appear to be decided on the particular facts and with the view of preventing unusual hardship or injustice. Generally in those states where certain officers must authenticate a bill of exceptions or case-made and an appellant, through no fault of his, cannot procure such authentication, as by the death or retirement from office of the trial judge, or by his failure to authenticate and the right of appeal thereby lost, a new trial will be granted by the appellate court. Also where there were any arbitrary or oppressive acts by the trial court or where the appellee is at fault in preventing the securing of a complete record by appellant, a new trial is granted. On the other hand, where the inability of an appellant to secure a complete record is due to his own laches, a new trial will not be granted. Also in the case of a destruction or loss of records or the inability of an appellant to procure a transcript of the testimony of proceedings, it is not grounds for a new trial, if the lost or destroyed record can be substituted or a statement of the evidence in lieu of the transcript can be made.

In the instant case, while death of the court reporter prevents a literal transcript of the testimony and the proceedings in court, yet there are sources to supply the deficiency, as hereinabove stated; i. e., a transcript of the testimony at the preliminary, a transcript of the testimony at the habeas corpus proceeding, and a transcript of the testimony at the former trial, the assistance of other writers of shorthand, able to decipher a portion of the shorthand notes, the notes of counsel taken at the trial, and the day by day newspaper accounts taken of the trial. With these aids we are satisfied a statement of the testimony and proceedings could have been made, and for this reason defendant is not entitled to a new trial on account of the death of the court reporter.

The case is affirmed.

DAVENPORT, J., dissents.

CHAPPELL, J., concurs.