Summary
In Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784, and cases cited therein, it was held that 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 this to be done without expense to the defendant.
Summary of this case from Teeter v. District CourtOpinion
No. A-6629.
Opinion Filed October 29, 1927.
1. Appeal and Error — Transcript of Testimony and Record Furnished Free to Defendant Who Is Unable to Pay. 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.
2. Same — Necessary Showing to Secure Free Transcript. Before a defendant will be entitled to have furnished him as a poor person, without expense, a transcript of the record and evidence, it must be made to affirmatively appear that accused is a pauper, that he has no money or property of any kind, that he has no relatives having money or property willing to assist him, and that his counsel could not make up a statement of the evidence from memory.
Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
Phil Brogdon was convicted of statutory rape, and he appeals. Reversed and remanded.
O.H. Whitt, for plaintiff in error.
Edwin Dabney, Atty. Gen., and J.H. Lawson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county on a charge of statutory rape and was sentenced to serve 18 months in the state penitentiary.
Defendant is charged with having accomplished an act of sexual intercourse with Edith Lewis, a female of the age of 15 years. According to the statement of facts, the prosecuting witness, Edith Lewis, testified positively for the state and was corroborated by Amanda Wilburn, who was aged 8 years at the time of the occurrence. All parties are negroes. It is argued that the court erred in refusing to order a transcript of the testimony and record for appeal at the expense of the county, citing Jeffries v. State, 9 Okla. Cr. 573, 132 P. 823, and Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338.
It appears that an affidavit was made by defendant showing his inability to pay for a transcript of the testimony, and also an affidavit of defendant's counsel stating that he has been paid for his services the sum of about $29, and that defendant is unable to pay affiant any more money, that he is destitute and can raise no money. The court made a finding in conformity with the affidavits filed.
We adhere to the rule announced in the case of Hutchins v. State, and Jeffries v. State, supra, and Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846. To be available, the error in denying a transcript of the record at the expense of the county, it must be clearly and affirmatively made to appear that a defendant seeking to have a transcript furnished at the expense of the county is without money or property, and without relatives or friends who will assist him, and for such reason is unable to pay for a transcript, and that his attorneys cannot make up a case-made from memory. If such showing is made, the court should order the transcript at the expense of the county.
The case is reversed and remanded, and, it appearing that defendant is incarcerated in the penitentiary for failure to give bail, it is ordered that the warden, upon demand of the sheriff of Pittsburg county, deliver defendant to said sheriff to be incarcerated in the county jail of Pittsburg county until he is discharged according to law.
DOYLE, P.J., concurs.
DAVENPORT, J., absent, not participating.