Ballinger v. State

Conviction for murder; punishment, death. The record is before us without any statement of facts or bills of exception. From the transcript we learn that the trial took place on January 21, 1928. Motion for new trial was made setting up serious objections to the verdict and judgment as being unsupported, and to the extent of the confession made by the accused. This motion was controverted by the State. On Thursday, the 26th of January, 1928, the court entered his order overruling said motion. The trial term of the court below adjourned on said 26th of January. On February 13th appellant made an affidavit before the clerk of the court trying him in which he stated that he was not able to pay for the preparation of a transcript of the testimony given on the trial of his case, and was not able to give security therefor, and unless he was furnished with such transcript of the testimony he could not appeal his case. He prayed the court to require the official court reporter to prepare and deliver to him or his attorneys a transcript of the evidence in his case. The record presents no contest or controversy of the truth of the matter set out in this affidavit, further than appears in the order and judgment of the trial court denying the prayer of said affidavit. On March 20, 1928, the learned trial judge made an order from which it appears that the affidavit above referred to was brought to the attention of said judge, in which order of the court is recited the fact that appellant has paid attorneys and is, therefore, not entitled to have a transcript of the evidence in this case made by the court reporter without payment therefor on the part of appellant, and the prayer for such transcript by appellant was denied. Our statute provides that for his services in making a statement of facts in a case like this, the stenographer shall be paid by the State. We are of opinion the learned trial judge fell into error in this matter. We find in Art. 760 C. C. P., 1925, the following: "When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant." We are not unaware of the fact that in some cases this court has held that where the record shows the accused to have been represented by paid attorneys of his own choice upon the trial, this court would not hold erroneous the action of the trial court in refusing *Page 151 to order a transcript of the testimony, made upon affidavit of inability to pay the fees to the stenographer for making same. We are not aware of any such holding in a death penalty case. We know of no holding of this kind since the enactment of the 1925 Revised Penal Code and Code of Criminal Procedure. We are unwilling to commit this court to such a proposition, in the face of the plain declaration of the statute. Our present statutes contain no provisions or exceptions in regard to this matter, and we are of opinion that in a death penalty case at least, this court would be unwilling to affirm a judgment in any case where there appears an uncontroverted affidavit of the inability of the accused to pay for the transcript, and it also appears that the affidavit has been brought to the attention of the trial court, and the prayer presented in such affidavit has been refused. It is deemed necessary in the administration of justice in this State to deprive men of their lives, under certain circumstances outlined and prescribed by our statutes, but we trust there will never come a time when one facing a situation of this kind makes a solemn oath that he is unable to pay the costs of such statement of facts; and in such case so long as there is provision in our law for the payment by the State of a competent court stenographer who has transcribed all the testimony in the case, for his services in making out such transcript, this court will never hold that because the attorney for the accused has failed to prepare privately a statement and tender it to the court, an affirmance can be ordered. We regret the necessity for reversal of judgments of conviction, but have no hesitation in a case like this, in ordering same. Feeling that this man has been deprived of the presentation of the facts in his case for review, to the court of last resort, and that he brought himself within the rules entitling him to such statement of facts, the judgment will be reversed and the cause remanded. Reversed and remanded. ON MOTION FOR REHEARING.