Aguilar v. Territory of New Mexico

Bantz, J. 1 vSSTküm-e transcript On motion of the defendant in this court an order was made directing the clerk of the Fourth district to send up the transcript of the record and proceedings in this case, or show cause why the same should not be done. The clerk has made a return, and that portion which is material to the decision of this matter sets out in substance that the fees allowed for the preparation of the transcript have not been paid or tendered by the defendant. The defendant was convicted of murder in the first degree at the trial in the district court, from which the appeal was taken. Under the statute of the territory an appeal in such case operates as a supersedeas (sec. 2483, Comp. Laws). By section 2476 (Comp. Laws 1884), it j[s provided, “when an appeal shall be taken which. operates as a stay of proceedings, it shall be the duty of the clerk of the district court to make out a transcript of the record in the cause and certify and return the same to the office of the clerk of the supreme court without delay.” In section 2477 it is provided, “when an appeal does not-operate as a stay of proceedings, such transcript shall be made out, ratified (certified) and returned on the application of the appellant.” In these two sections a clear destinction is taken between those causes in which there is a stay of execution, and those in which there is not; in the former the clerk of the district court is required to make out and return the transcript into the clerk’s office of this court without delay, but in the latter it is to be made out and returned on the application of the appellant. If there has been a stay of execution, the territory becomes interested in a speedy determination of the appeal, and there is no way in which that appeal can be determined without a transcript before this court. If there has been no supersedeas, the judgment of the court below-is carried into execution against the defendant notwithstanding the appeal. The same question, under like statutory provisions, was passed upon in State ex rel. v. Daily, Clerk, Etc., 45 Mo. 154, and Judge Bliss, speaking for the court, says: “In civil cases if the appellant fails to see that his transcript is filed, the respondent may produce one and take judgment; but in criminal cases, if it is not sent by the clerk upon supersedeas, according to the requirements of section 16, or not produced by. the appellant when there is no supersedeas, according to section 17, I know not how the case will get here, or how the sentence is to be executed. If the-clerk’s duty is limited by the ability or willingness of the accused to pay him for the transcript, he need only to procure the allowance of the supersedeas, and then postpone indefinitely or defeat altogether the execution of the sentence. There is a marked distinction in appeals where there is a supersedeas and where there is none.” “The duty then of sending up a proper transcript upon supersedeas in a criminal prosecution is imperative, and is not personal to the clerk, without the application of the accused. It becomes essential to the further prosecution of the case and the execution of the judgment in which the accused may have no interest,” The mandamus to the clerk was made peremptory. In Territory v. Hicks, 30 Pac. Rep. 872, this court pointed out the distinction to be observed in criminal cases on appeal between those with and those without supersedeas., Our conclusion therefore is that this being an appeal where the execution of the judgment of the court below is stayed, it is the duty of the clerk to make out and return the transcript into the clerk’s office of this court without delay, and that the failure or refusal of the appellant to pay for such transcript can not be averred by an excuse for the failure so to do. Though it may have been the long standing practice for appellants in criminal cases to pay for such transcript, we are satisfied that the legislature has so provided as to excuse those who have obtained a stay of execution. As to what may be the right of the clerk in relation to costs in other respects is not necessary to decide. The rule heretofore granted is made absolute. Smith, C. J., and Laughlin and Hamilton, JJ., •concur.