Scroggins v State

Annotate this Case

Scroggins v State
1942 OK CR 15
121 P.2d 621
73 Okl.Cr. 388
Decided: 01/21/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Mandatory Duty of Trial Court Upon Proper Showing to Direct That Transcript of Record and Testimony Be Furnished Free of Charge to Poor Defendant. In a criminal prosecution, where the defendant has been convicted and intends in good faith to take an appeal, and makes a proper showing to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to direct that this be done without expense to the defendant. Where such showing is made, and the court denies the application, the defendant may file a transcript of the record in this court, and this court will, under authority of section 3823, O. S. 1931, 20 Okla. St. Ann. § 111, and section 635, O. S. 1931, 12 Okla. St. Ann. § 959, make an order directing that this be done without expense to the defendant.

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2. Same-Requisite Showing by Defendant Seeking Transcript Free of Charge. Before a defendant is entitled to have a transcript of the record and of the testimony without expense, on ground that he is a poor person, it must affirmatively appear that he has no money or property of any kind, has no relatives having money or property and willing to assist him, and that his counsel cannot make up a statement of the evidence from memory.

3. Same-Denial to Defendant of Transcript Free of Charge Held Abuse of Court's Discretion. Where the uncontroverted showing is to the effect that counsel for the defendant could not make a statement of the evidence from memory, and that no adequate and correct "bill of exceptions" could be had with out a transcript of the evidence adduced at the trial, together with the rulings of the trial court made during the progress thereof, it is a manifest abuse of judicial discretion for the trial court to deny to the defendant a transcript of the proceedings of the trial court without costs to him.

JONES, J., dissenting.

Appeal from District Court, Delaware County; Wm. M. Thomas, Judge.

Charley Scroggins, convicted of larceny of livestock, appeals from the court's order denying defendant's application that he be furnished the transcript of the record and the testimony taken at the trial, and for the reasons set forth in his application in the court below he asks for an order that he be furnished the same. Order in accordance with opinion.

The plaintiff in error was convicted in the district court of Delaware county of larceny of livestock. Motion for a new trial was duly filed and overruled on November 18, 1941; judgment was then rendered and he was sentenced to serve a term of ten years in the state penitentiary. Thereupon, in open court, he gave notice of his intention to appeal to this court as provided by Session Laws 1941, ch. 18, sec. 1, p. 89, 22 Okla. St. Ann. § 1055, and filed his application for a transcript of the proceedings and the testimony taken upon the trial, stating that

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by reason of his poverty he is without means to pay for a transcript of the record and of the testimony, including the costs of making a case-made, and praying for an order of the court that the same be furnished to him at the expense of the county; that unless such order is made he will lose his constitutional right to have his case reviewed by the Criminal Court of Appeals of Oklahoma.

In corroboration, the following affidavit was filed:

"A. C. Brewster, of lawful age, on oath says: That he is attorney for Charley Scroggins, the above named defendant, that he is personally acquainted with the contents of the motion herein, and knows of his own personal knowledge, that the same is true; that he is unable to make a statement of the evidence in the case from memory.

"A. C. Brewster.

"Subscribed and sworn to before me this the 18th day of Nov., 1941.

"James I. Monroe, Court Clerk."

On the 20th day of November the following proceedings were had:

"The Court: You will have to put the defendant on, if I grant you the relief. He is asking a favor of the court; he will have to take the stand so that we can ask him as to his financial ability."

The defendant and his corroborating witnesses were duly sworn and testified in substance as follows:

Charley Scroggins, defendant, testified:

"My age is 38 years, I live with my wife and two children, a girl 13 and a boy 11 years of age in a one room house, which does not belong to me; I cut wood and do common labor for a living for my family, I have no livestock of any kind and no personal property except an old automobile; I agreed to pay $95 for it. I made a down payment by turning in another car I got from Joe Scroggins for $25, the balance to be monthly payments

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of $15. A payment came due since I got in jail, which was paid by my wife, another payment is due this November 20th. The children are not going to school now; my father does not own the property where he lives. I have no friends or kinsmen that would be able or willing to advance any money to pay for this transcript. The court reporter told me the costs of a transcript would run about $57 or $67."

Mrs. Cora Scroggins testified:

"I am the wife of Charley Scroggins, our girl is 13 and the boy is 11, my husband does not own any personal property and I do not own any personal property; we make a living cutting wood, we have lived at this place where we are now living for the past six years. When I employed Judge Brewster, his attorney, I did not pay him any money, I told him our circumstances and that I would pay him a little along until he was paid. The court fixed Charley's bond and I have got $8,000 on it. If my husband gets out on bond he will work, as he is industrious. It takes all that I can make from my labor to get meat and bread for the family. The Court: Q. How many men have signed this bond? A. Mr. Turner, Mr. Barker, Mr. Cole and Charley Williams. Q. Did you make this $15 yourself, you paid on this car? A. Yes. Q. How long did it take you? A. Quite a while. The little boy helped me. Q. Did you cut the wood for the entire $15? A. I sold a cook stove for $5 and made the other $10 cutting wood. Q. How much wood can you and the boy cut a day? A. Well we average cutting two ricks. Q. What do you get for that? A. We get $1.50 and $1.25 a rick. We get the timber on the place where we live, the Wallace boy lives here at Jay has a tax deed and gave us permission to cut the wood."

Lester Ross testified that the defendant's family live in an old one room house, built of rough lumber, and they cut wood for a living.

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A. C. Brewster testified:

"I live at Pryor; am a practicing attorney. Mrs. Cora Scroggins came to my office and told me her husband was in jail here; that if Charley would get out he would pay me and if he did not she would do the best she could to pay me herself. I knew from the condition of Mrs. Scroggins and the children I could not expect to get any fee. I know they have a lot of friends, but they do not seem to be able to borrow money; I would like to say this, it is largely a matter of friendship, because Charley has been a friend of mine."

On the part of the state R. F. Mahan testified:

"I am a deputy sheriff in this county, I know old man Scroggins and his boys, Joe, Audie, Herbert, Andy and Clarence who is now in the army; I examined the defendant's automobile and in my opinion a fair cash market value I would say around $150."

Alvin Liles testified:

"I live at Jay, have been selling and repairing automobiles for seventeen years, have examined defendant's Ford automobile coach bearing license 45283; my opinion a fair cash market value of that car is $150 to $175."

Mrs. Scroggins, recalled, testified:

"I tried to sell this car to help finance my husband's appeal; and offered to sell it for $75. The Court: The application to the court to require the county to pay the expense of the case-made will be denied. Mr. Brewster: Comes now the defendant, and moves the court to grant him an appeal to the Criminal Court of Appeals, on the question of the motion filed here, allowing his appeal to be made at the expense of Delaware county, Oklahoma. Which motion was denied. Mr. Brewster: To which ruling of the court the defendant excepts and asks that the reporter be directed upon payment for the transcript on the bearing had on this motion to make a proper certified copy so as to bring this record before the Criminal Court of Appeals, the attorney for the defendant will pay for that record himself."

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A. C. Brewster, of Pryor, for plaintiff in error.

Riley Q. Hunt, of Jay, for defendant in error.

DOYLE, J. The plaintiff in error filed in this court on December 20, 1941, his petition in error, and a transcript of the proceedings had upon his application to the trial court for a transcript of the record in the case and the reporter's notes to be furnished at the expense of the county.

"Said plaintiff in error alleges that the court erred in overruling his motion to have case-made at the expense of Delaware county.

"Wherefore plaintiff in error prays that the order overruling said motion be set aside and that he be granted an order by this court to have case-made at the expense of Delaware county, and have such other relief it may be found that he is entitled to receive."

The application was assigned for hearing before this court for January 6, 1942, at which time the case was submitted on the transcript of the record.

Section 3823, O. S. 1931, 20 Okla. St. Ann. § 111, in part is as follows:

"Provided, however, that if, before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county."

A review of the cases, under this section, show several in which the court has used language to the effect that the granting or refusal of a case-made at the costs of the county rests in the sound judgment and discretion

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of the trial court. Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338; Hardin v. State, 28 Okla. Cr. 123, 229 P. 654; Young v. State, 33 Okla. Cr. 255, 243 P. 763; Moore v. State, 33 Okla. Cr. 304, 243 P. 995; Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784; Hembree v. State, 53 Okla. Cr. 79, 7 P.2d 491; Palmore v. State, 61 Okla. Cr. 312, 67 P.2d 974; Wooten v. State, 66 Okla. Cr. 331, 92 P.2d 594.

In the case of Compton v. State, 70 Okla. Cr. 258, 105 P.2d 793, this court held:

"When a defendant has been convicted and intends in good faith to take an appeal, upon a proper showing made to the trial court that he is unable to pay court reporter for a transcript of the testimony, or court clerk for a transcript of the record, it is the duty of the trial court to direct that this be done without expense to defendant. Where such showing is made, and transcript of the evidence is not ordered by the trial court, the defendant may file a transcript of the record in this court, and this court will, under authority of Sec. 535, Sts. 1931, 12 Okla. St. Ann. § 959, order a transcript of the record and testimony."

In Wooten v. State, supra, this court held:

"In a criminal prosecution where the defendant has been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant."

In the case of Cherry v. Brown, 79 Okla. 215, 192 P. 227, 13 A. L. R. 92, the Oklahoma Supreme Court in substance held that section 3821, O. S. 1931, 20 Okla. St. Ann. § 108, gives the parties or their counsel the absolute right to a transcript of the court reporter's notes of the evidence and other proceedings, and thereunder

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it is mandatory on the trial court on request to require the court reporter to take down the evidence in shorthand and thereafter transcribe it, in view of this section and sections 107, 315-318 of this title.

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338, 339, we said:

"Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its completest protection."

This court has adopted a liberal policy in protecting the constitutional right as guaranteed in Bill of Rights, that the courts of justice of the state shall be open to every person, and right and justice shall be administered without sale, denial, delay, or prejudice. Const. art. 2, sec. 6, Okla. St. Ann. And the statutory enactments in aid of the constitutional guaranty.

This constitutional guaranty and the statute in aid of it are not to be construed as requiring the county where prosecution arises to furnish the record in all cases, but only in those cases in which to deny the record would in effect be imposing a penalty by denying the right to appeal to one who by reason of poverty is unable to provide the record. Wainwright v. State, 11 Okla. Cr. 547, 149 P. 914.

This court under the provisions of section 535, O. S. 1931, 12 Okla. St. Ann. § 959, has been liberal in permitting records to be withdrawn and corrections to be made

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when any matters have been by inadvertence or mistake omitted therefrom.

Section 538, O. S. 1931, 12 Okla. St. Ann. § 962, provides that in case of accident or misfortune which could not reasonably have been avoided by the party appealing, the said court or judge, upon notice to the adverse party, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, but not beyond the maximum time allowed by statute for perfecting an appeal.

Section 539, 12 Okla. St. Ann. § 963, provides:

"If the court rendering final order or judgment in a cause, or the judge thereof, shall refuse to allow a reasonable time to make and serve a case, or to file the same in the appellate court, the party desiring to file the appeal or proceeding in error may, upon notice to the adverse party, make application to the appellate court having jurisdiction of such an appeal or proceeding in error, or to one of the justices thereof, for such order, and said court and justices thereof shall have the same power and jurisdiction in relation to such matters as the court in which such final order and judgment was rendered; but their orders shall be filed in the trial court."

It affirmatively appears from the record that counsel for defendant could not make a statement of the evidence from memory. In other words, we think it clearly appears that no adequate and correct "Bill of Exceptions," necessary for a proper review of the trial court, could have been had without a transcript of the evidence adduced at the trial, together with the rulings of the trial court made during the progress thereof.

Upon an examination of the record before us, our conclusion is that there is here shown a clear and manifest abuse of judicial discretion on the part of the trial court in denying the defendant's application for a transcript

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of the proceedings and of the testimony taken upon the trial, and on the undisputed facts was, we think, in effect the denial of a constitutional right.

It follows that plaintiff in error is entitled to have a transcript of the testimony and case-made furnished without expense to him.

It appearing from the record that the trial court after denying the defendant's application failed to make and enter an order granting an extension of time in which to make, serve, settle and sign a case-made, while his application for a transcript of the testimony taken in the trial of the case was pending and undetermined before this court.

It is therefore adjudged and ordered that the court clerk of Delaware county prepare a duly certified copy of the record proper as defined by section 3146 (22 Okla. St. Ann. § 977) of the Code of Criminal Procedure, and furnish the same to counsel for the defendant to file with the clerk of this court in order that proper orders may be made and entered extending time in which to make, serve, settle and sign a case-made and to fix the time in which the same shall be filed in this court, and that the amount of the appeal bond be by this court determined.

It is further ordered that W. S. Jordan, official court reporter of the district court of Delaware county, Okla., prepare a case in the above-numbered and entitled case, including a transcript of the testimony taken at the trial, at the expense of Delaware county, and furnish the same free of charge to A. C. Brewster, counsel for defendant, Charley Scroggins, plaintiff in error, herein referred to.