State Ex Rel. Bird v. Superior Court

*786 Millard, J. Jake Bird was found guilty of murder in the first degree in department No. 3 of the late Judge E. D. Hodge, presiding judge of the superior court for Pierce county, November 26, 1947, and the jury further found that the death penalty should be imposed. Judgment in conformity to the verdict was entered. An application was filed in this court January 31, 1948, for a writ of mandate, to compel the superior court for Pierce county to hold that defendant’s appeal had been timely initiated. Relator Bird also prayed that writ issue requiring the superior court for Pierce county to order the official court reporter to prepare, at the expense of Pierce county, a transcript of the reporter’s notes of all the testimony in the case of State of Washington v. Jake Bird, without cost to Bird, under the provisions of Rem. Supp. 1943, §42-5 [P.P.C. § 108-9]. In State ex rel. Bird v. Superior Court, ante p. 110, 190 P. (2d) 762, we granted the prayer that the trial court be required to hold that the notice of appeal, filed December 12, 1947, was a valid notice of appeal from the judgment entered December 6, 1947. We denied the application for a writ of mandate directing the superior court for Pierce county to (1) enter an order permitting Bird to prosecute his appeal in forma pauperis; (2) enter an order directing the clerk of the superior court to prepare and file and certify, in a manner provided by law, at the expense of Pierce county, a transcript of the testimony and records in the case; and (3) recall the death warrant issued, December 6, 1947. We said: “All of these applications are denied: the first because it would be meaningless, as we have had no statutory reference to appeals in forma pauperis in criminal proceedings since the repeal of Rem. Rev. Stat., § 1729 [P.P.C. § 5-37], in 1943, and the only assistance at public expense to which an indigent defendant is entitled in prosecuting an appeal is that provided for in Rem. Supp. 1943, § 42-5, heretofore discussed; the second because Rem. Rev. Stat., §'1729, on which the request for a transcript of the records and files to be furnished by the clerk of the superior court at the county’s expense, is apparently based, was, if not super *787 seded by Rule of Supreme Court 12, specifically repealed in 1943; the third because, the date fixed by the death warrant for the execution having passed, the death warrant had become inoperative and there is no necessity for its recall (Rem. Rev. Stat., § 2222 [P.P.C. § 134-61]; Grossi v. Long, 136 Wash. 133, 238 Pac. 983), and, an appeal having been taken, no death warrant can issue unless and until the judgment is affirmed. Rem. Rev. Stat., § 2210. “Should the judge of department No. 3 of the superior court for Pierce county refuse the application for a transcript of the reporter’s shorthand notes of the testimony and other proceedings taken in the case of State of Washington v. Jake Bird, his ruling might again be brought to this court for review before a statement of facts could be prepared, certified, and filed and appellant’s opening brief prepared and filed.” March 30, 1948, Bird petitioned the superior court for Pierce county for a transcript of the testimony in the case of State of Washington v. Jake Bird, at the expense of Pierce county. Honorable Hugh J. Rosellini, successor to the late Honorable E. D. Hodge, presided at the hearing on the petition. At the trial of Bird, at which the late Honorable E. D. Hodge presided, on the charge of murder, the official court reporter made a report of the proceedings on a machine known as a stenograph. That machine has a sound transcriber which records, upon plastic records, every proceeding of the trial, every noise, and every voice, during that trial. Judge Rosellini listened to the transcriber, the words of each witness, every order of the court, the argument of counsel, and the instructions. After considering all of the facts, records, and files, respondent judge denied the petition and announced that, in his opinion, justice would not be promoted by furnishing petitioner Bird with a free statement of facts, to be made by the official reporter and payment therefor to be made by the county treasurer. The court expressed the conviction that Bird had been accorded a fair and impartial trial, in which no grave or prejudicial errors had occurred. Relator, who refused the services of an able attorney of forty years’ experience, appointed by this court to aid him, now appears in this court in propria persona on an alter *788 native writ of mandate, praying that the peremptory writ issue, requiring respondent to direct the official court reporter, in and for Pierce county, to furnish a longhand copy of the testimony in the criminal case of State of Washington v. Jake Bird, upon the ground that relator is indigent. Relator relies upon Rem. Supp. 1943, § 42-5, which provides that: “When the defendant in any criminal case shall present to the judge presiding satisfactory proof by affidavit or otherwise that he is unable to pay for such transcript, the judge presiding, if in his opinion justice will thereby be promoted, may order said transcript to be made by the official reporter, which transcript fee therefor shall be paid out of the county treasury as other expenses of the court are paid.” While, in State v. Brown, 26 Wn. (2d) 857, 176 P. (2d) 293, and State ex rel. Bird v. Superior Court, ante p. 110, 190 P. (2d) 762, we held that we had the right, in capital cases, in the event we felt that the constitutional right of appeal of an accused had, by a series of circumstances beyond his control, been denied, to relax a rule of this court respecting the perfecting of an appeal, we are committed to the rule that the constitutional provision under which a person convicted of crime is given the right to appeal, does not include the right to require the county to defray the cost of a transcript on appeal in the case of an impecunious defendant. In State ex rel. Marr v. Superior Court, 163 Wash. 459, 1 P. (2d) 331 (all of the authorities are reviewed therein), which has never been modified, we held that the statute (Rem. Comp. Stat., § 42-5, now Rem. Supp. 1943, § 42-5) which authorizes the trial judge, upon satisfactory proof of inability to pay, to order a transcript if, in his opinion, justice will thereby be promoted, vests the matter in the discretion of the trial judge. The only statutory authority pertaining to costs on appeal, so far as indigent defendants are concerned, will be found in Rem. Rev. Stat., § 42-5, as amended by the Laws of 1943, chapter 69, p. 129, § 4, which was interpreted by this court in State ex rel. Marr v. Superior Court, supra. As stated by Judge *789 Schwellenbach in his concurring opinion in State ex rel. Bird v. Superior Court, supra, “The legislature . . . placed the initial responsibility for determining whether or not a transcript shall be furnished an accused at the expense of a county, upon the judge of the county where the application is made, and that judge should feel perfectly free to exercise his discretion in determining whether or not ‘justice will thereby be promoted.’ ” There is no authority on which this court may permit the filing of appeal in forma pauperis. Rem. Rev. Stat., § 1729 [P.P.C. § 5-37], which was cited by relator in State ex rel. Bird v. Superior Court, supra, as authority for preparation, certification, and filing of records in criminal appeals prosecuted in forma pauperis, at the expense of the county, was repealed by the Laws of 1943, chapter 206, p. 639, § 1. Rem. Supp. 1943, § 42-5. The only assistance, at public expense, to which an indigent defendant is entitled in prosecuting an appeal, is that provided by Rem. Supp. 1943, § 42-5. As stated in State ex rel. Marr v. Superior Court, supra, that statute involves more than the mere indigence of the defendant. It prescribes that, if the presiding judge does not think justice will be promoted, he shall not order a free transcript of the evidence for the accused on appeal. It is possible, but it is not manifest, as was the situation in the case cited, that the discretion of the trial judge was abused. “It cannot justly be said that this usurps the functions of this court, which in such cases are purely appellate, while the superior court is a court of general and exclusive jurisdiction, except for the correction of errors in the matters and ways provided by law. The language of the statute is very broad and vests in the trial judge almost absolute discretion. Its language is, ‘If in his opinion justice will thereby be promoted, [he] may order said transcript to be made by the official reporter.’ “Under our decisions, no constitutional right of relator has been violated. The right to appeal being a constitutional and statutory right, without which relator would have no appeal, the statutes relating thereto must control.” *790 The petition of the relator is denied. The remittitur will go down immediately. Mallery, C. J., Jeffers, and Hill, JJ., concur.