Bokien v. State

The opinion of the court was delivered by

Anders, J.

Appellant was tried in the superior court of Pierce county upon an information charging him with the offense of obtaining property under false pre-tences. From a judgment of conviction in that action he appealed to this court in forma pauperis. In order to properly prepare "his record on appeal he conceived it to be nec'essary to obtain a typewritten copy of all the evidence introduced upon the trial, and other proceedings had therein not already a part of the record, and accordingly requested the respondents, and especially the clerk of the superior court, to furnish the same to him-at the expense of the county. His request was refused, and he thereupon instituted this proceeding in the superior court to compel the respondents to furnish him this record free of charge. An alternative writ of mandate was issued as prayed in the petition, and on the return day thereof the respondents appeared and moved to quash the writ and also demurred to the affidavit and to the petition on the ground that they, and each of them, failed to state facts sufficient to entitle the plaintiff to relief. The motion was granted, the demurrer sustained, and the proceedings dismissed at the cost of the petitioner. From said orders and judgment the petitioner appealed.

As stated by counsel for appellant, there is hut one point in this case, and that is, whether or not the defendant in a criminal action wrho appeals in forma pauperis is entitled to a typewritten copy of the testimony and the rulings of the trial court at the county’s expense, under and by virtue of the acts of March 8, 1893, relating to exceptions and appeals. The question is one of considerable importance and has never been directly passed upon by this court; nor can it now be determined, for the reason that the appeal in this instance has become ineffectual, and this court is therefore without jurisdiction of the cause. Mandamus is a civil proceeding (High, Extraordinary Remedies (2d ed.) §4), and the statute provides that—

“An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party conditioned for the payment of costs and damages as prescribed in section seven of this act be filed with the clerk of the superior court, or money in the sum of two hundred dollars be deposited with the clerk in lieu thereof. ...” Laws 1893, p. 122, §6.

No bond was filed, or money deposited by appellant within the time prescribed by law or at all, and consequently the case remains precisely as it was before the appeal was attempted.

“ The fact that appellant is a pauper does not of itself relieve him from the necessity of giving an appeal bond. There must be express statutory authority for an appeal in forma pauperis.” 1 Enc. PI. & Pr., p. 999.

There is no statute in this state authorizing an appeal in forma pauperis in civil cases, and hence appeals must be taken and perfected in the same manner by all appellants, whether rich or indigent.

The appeal is dismissed.

Hoyt, C. J., and Goedon, J., concur.