Summary
In Toledo v. Smith (1965), 3 Ohio St.2d 80, the Court held that a defendant convicted of a misdemeanor in Toledo Municipal Court is not entitled to a complete transscript of stenographer's notes at public expense where a narrative bill would adequately exemplify the errors claimed, and that failure to provide a complete transcript does not violate the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.
Summary of this case from Lakewood v. StumpOpinion
Nos. 38912 and 38913
Decided July 7, 1965.
Bill of exceptions — Indigent defendant's right to, at public expense — Narrative bill sufficient, when.
Where a narrative bill of exceptions would adequately exemplify all claimed errors, an indigent defendant in a misdemeanor case is not entitled to have the notes of the reporter transcribed at public expense, and a failure to order same upon application of such a defendant is not a violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.
APPEALS from the Court of Appeals for Lucas County.
In each case, the appellant, charged in the Toledo Municipal Court with being drunk and disorderly and with resisting arrest, was tried and found guilty of those misdemeanors on August 26, 1963. His motions for new trial were overruled and he was sentenced to 30 days in the Toledo House of Correction. Defendant thereupon filed applications for a transcript and a bill of exceptions in the form of a complete stenographic transcript of the trial herein for the purpose of appeal and at the cost to the city of Toledo. Defendant, in his applications, represents that a bill of exceptions at public expense is necessary because the defendant is indigent and that a complete bill is necessary for a review of claimed errors which the applications specifically describe. A hearing was granted upon these applications and evidence taken. This evidence showed that the cost of the transcribed stenographer's notes of the motions to suppress the evidence, the motions to quash the affidavits, the three-day trial and the motions for new trial would be $350. The application as to the bill of exceptions was denied on September 10, 1963.
Defendant filed a notice of appeal and a bill of exceptions containing only the stenographer's notes covering the hearing upon the application for the full bill of exceptions at public expense. The Court of Appeals affirmed the trial court's judgment.
The causes are before this court upon allowance of motions to certify the records.
Mr. Louis R. Young, director of law, and Mr. John A. DeVictor, Jr., for appellee.
Mr. Clarence G. Smith, Mr. Armand Hocker and Mr. James B. Simmons, Jr., for appellant.
We note, as did the Court of Appeals, that the trial court, in remarks contained in the partial bill of exceptions, concluded that each case was one in which a narrative bill of exceptions would adequately exemplify the errors claimed by way of specification in the application. We note also the trial court's offer to assist in the preparation of such a narrative bill of exceptions. Considering that the defendant here was indigent in fact, we have before us the appellant's claim, reduced to bare bones, that in every misdemeanor case an indigent defendant is entitled to a bill of exceptions, including a complete transcription of the stenographer's notes at public expense.
Griffin v. Illinois, 351 U.S. 12, upon which appellant relies, does not so hold even in regard to felony cases. See The Impact of Griffin v. Illinois on State Court — Federal Court Relationships, 24 Federal Rule Decisions, 75. See, also, Mr. Justice Harlan's dissenting opinion in Griffin v. Illinois, supra, in which he indicates that the majority opinion applies to felony cases only. He there states, at page 29, "Much as I would prefer to see free transcripts furnished to indigent defendants in all felony cases, I find myself unable to join the court's holding that the Fourteenth Amendment requires the state to do so * * *." See, also, Section 2953.03, Revised Code, as amended subsequent to the Griffin case and subsequent to this court's holding in State v. Frato, 168 Ohio St. 281, which permits the trial judge in the interest of justice to provide indigent defendants in felony cases with both bills of exceptions and transcripts at public expense.
This seems to us to draw the line where it should be drawn. The problem is that the cost of a transcript and a bill of exceptions, as well as other costs of defense, are considerations which confront the accused in all cases. To remove this consideration in misdemeanor cases only as to indigents is certainly not equal justice. It is to say that indigents may frivolously appeal while others must consider the costs.
We note that Mr. Justice Frankfurter in his concurring opinion in the Griffin case, at page 24 says:
"* * * When a state not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent. The growing experience of reforms in appellate procedure and sensible, economic modes for securing review still to be devised, may be drawn upon to the end that the state will neither bolt the door to equal justice nor support a wasteful abuse of the appellate process."
The judgment in each appeal is affirmed and the causes are remanded for execution of sentence.
Judgments affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.