PEOPLE v. SMITH (1949)

This is a motion for an order to direct a shorthand reporter of the superior court to prepare a transcript on appeal in a criminal case in accordance with Rule 35 of the “Rules on Appeal” adopted by the Judicial Council.

The defendant, Smith, was convicted of violating the provisions of Penal Code section 4573.5 and was granted probation for five years. The probation order provided that Smith should be imprisoned in the county jail for one year of the probationary period. Notice of appeal from the judgment and from an order denying defendant's motion for a new trial were filed. The defendant has requested a reporter's transcript of the oral proceedings and an additional record including “all instructions given” and the “opening and closing arguments of the district attorney to the jury”. The reporter has neglected and refuses to supply the transcript unless the defendant pays fees for its preparation, and it has been represented to this court that the judge of the superior court of Marin County will not direct the reporter to prepare the transcription of his shorthand notes.

Judicial Council Rule 35 provides that, “On the filing of the notice of appeal the clerk shall prepare an original and 3 clearly legible typewritten copies of the clerk's transcript, in the manner and form required by Rule 9, and shall append to the original and each copy a certificate that it is correct.” Rule 9 is not pertinent to the question presented. In Rule 33 a distinction is made between “normal” and “additional” records. If an additional record is desired an application therefor shall be filed with the clerk who shall present such application to the judge and, “Except as to instructions given, which shall be included in the record if the defendant urges error as hereinabove provided, the judge, within 3 days after the filing of such application, shall make an order directing the inclusion in the record of as much of the additional material as, in his opinion, may be proper to present fairly and fully the points relied on by appellant in his application. If the judge fails to make any order within 3 days after the application is filed, the material requested, with the exception of exhibits, shall be included in the clerk's and reporter's transcripts without such order.” Rule 33(b), subd. (3). In the present case the trial court did not make an order within three days and, hence, if the defendant is entitled to any record without cost, he is entitled to the “additional” record.

The district attorney of the County of Marin states that, “The sole question raised here is whether or not the defendant is entitled to the preparation of a reporter's transcript without cost to himself.” The attorney general presents the issue as follows: “The cost of a Reporter's Transcript on Appeal to be furnished a defendant not having been made a county charge in the absence of a court order the county cannot be forced to pay the reporter therefor.”

The Penal Code provides that, “Either party in the prosecution by indictment, information, or complaint may appeal on questions of law alone, as prescribed in this chapter and in rules adopted by the Judicial Council.” § 1235. The legislature has conferred upon the Judicial Council the power to make rules relating to appeals, but such power is confined to “practice and procedure.” Pen.Code, § 1247k.

Where a reporter's transcript is required the rules provide that the clerk shall immediately notify the reporter who shall prepare the necessary transcription of his notes, attach a certificate that it is correct and deliver the original and copies to the clerk. The clerk shall deliver one copy to the respective attorneys. The original is eventually delivered to the judge. Unless corrections are proposed the judge shall certify the original and redeliver to the clerk with a certificate that corrections have been made or that no objections have been filed, whereupon the original transcript shall be transmitted to the reviewing court and the copies made available to the parties. Rule 35. It may be noted that in the foregoing rule no mention is made of the cost or the payment of a fee for preparation of the transcript.

If a transcription of the oral proceedings may not be obtained “for any reason” the appellant may file an application for permission “to prepare a settled statement” to be used in lieu of a reporter's transcript. The judge may use his discretion in ruling upon the application. Rule 36. An agreed or settled statement is a narration of oral proceedings, and in part it may contain certain questions and answers that would ordinarily appear in a reporter's transcript. Rule 7.

Respondent relies upon Richards v. Superior Court, 145 Cal. 38, 78 P. 244, wherein the words “costs” and “fees” are used with the same reference and implication. In that case a request was made for a transcription of the oral proceedings to be used in preparing the record upon an appeal in a criminal case. Richards v. Superior Court is not an authority controlling the form or procedure sought in the present case. The Richards case was decided in 1904. People v. Ruiz, 144 Cal. 251, 77 P. 907, decided in the same year, refers to the rules of the court as requiring an authenticated bill of exceptions, the then prescribed method of presenting the oral evidentiary record. A bill of exceptions is the result of the work of attorneys and is not prepared by state or county clerical help. The court in the Richards case saw no reason why the state should pay for the legal work performed by the defendant's attorney. The county clerk, however, did prepare and file his part of the record (the Clerk's Transcript) as a county charge and without cost to the appellant.

When the judge ordered the whole or a part of the proceedings transcribed the fees of the shorthand reporter became a charge against the county treasury, but if the request was made by either party the shorthand reporter was paid by such party. Code Civ.Proc. § 274; Richards v. Superior Court, supra, 145 Cal. at pages 40–41, 78 P. 244. A careful reading of the Richards case indicates that the general purpose of the statute was to give the convicted defendant the right of appeal without being charged with costs, except that such costs should be subject to the approval of the trial court. If the transcription of shorthand notes was necessary to the attorney in preparation of a bill of exceptions then it was necessary to pay for such transcription, but if the defendant was unable to pay the judge was permitted to use his discretion and designate portions of the testimony that might be transcribed without charge. The procedure under the former bill of exceptions is similar to that under the present agreed or settled statement. The bill of exceptions or agreed or settled statement of appeal is not, of course, the typical present method of preparing a record on appeal in a criminal case.

In People v. Fleming, 166 Cal. 357, 136 P. 291, Ann.Cas.1915B, 881, the one point involved was the propriety of making certain affidavits part of the record on appeal. Changes in rules covering records on appeal are noted by the court, 166 Cal. on pages 374 and 375, 136 P. at page 299, Ann.Cas.1915B, 881: “The District Court of Appeal concluded that under the law none of these affidavits was a properly authenticated part of the record on appeal, and therefore that it could not consider any of them. This conclusion was based upon the well-established rule under the statutes as they existed prior to the change in our laws relating to records on appeal in criminal cases made in the year 1909, to the effect that affidavits presented on a motion for a new trial and the minutes of proceedings on such a motion constitute no part of the judgment roll, that the clerk cannot make them a part thereof, and that they can be considered by an appellate court only when contained in a properly authenticated bill of exceptions. At that time, section 1246 provided for the transmission by the clerk to the appellate court of copies only ‘of the notice of appeal, the record (the judgment roll, section 1207, Penal Code), and of all bills of exceptions,’ and sections 1171, 1174, 1175, and 1177, Penal Code, provided for the making up and settlement of bills of exceptions. In 1909, sections 1171, 1174, 1175, and 1177, Penal Code, were repealed, leaving us without any statutory provision whatever for a bill of exceptions in a criminal case. * Sections 1247, 1247a, 1247b, 1247c, and 1247d were added, providing for the transcription, certification by the reporter and by the trial judge, and forwarding of ‘the phonographic reporter's notes.’ It was evidently the design of the Legislature to have the record provided for in section 1246, as amended, and the new section, cover wholly the matter of the record on appeal, and dispense entirely with bills of exceptions.”

In subsequent years the rules controlling the procedure in filing records in criminal cases on appeal have been changed, but such changes do not appear pertinent to the present problem. The general tendency has been to require payment for records and reports to be used by the legal staff representing the appellant in the preparation of a legal document such as a bill of exceptions, but to make no charge if the record is merely an original or a transcription of a document or of notes and does not require legal interpretation or amplification by a clerk or other court officer.

In some jurisdictions costs of the prosecution are imposed upon a convicted person either upon the theory that costs are proper to reimburse the state for expenses such as the attendance of witnesses, or that they are a part of the punishment. In a few states costs of prosecution are assumed to be debts to the officers of the court. 1 Archbold's Criminal Practice and Pleading, 8th Ed. 1902, p. 596–597. The addition of costs as part of punishment need not be mentioned further in this case except to say that California has progressed to the point of not imposing costs on a defendant in a criminal case for the preparation of a record containing merely the reporter's transcription of the oral proceedings.

The statement in the Richards case, supra, that, “Where the Codes are silent, the costs are still thrown upon a defendant in a criminal case, as well as upon a defendant in a civil case”, 145 Cal. at page 41, 78 P. at page 245, does not constitute the present rule. Costs are based upon statutory provisions. 7 Cal.Jur. 254–255. “He who would claim costs must put his finger on a statute which awards the same. The measure of the statute is the measure of the right.” Sime v. Hunter, 55 Cal.App. 157, 159, 202 P. 967, 968. “The term ‘costs', it has been said, means ‘those fees and charges which are required by law to be paid to the courts, or some of their officers, or the amount of which is expressly fixed by law.’ Blair v. Brownstone Oil & Refining Co., 20 Cal.App. 316, 128 P. 1022.” Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 274, 83 P.2d 503, 507; see also Estate of Bevelle, 81 Cal.App.2d 720, 185 P.2d 90.

If a particular county suffers financially because of offenses which arise out of or are connected with the presence of state institutions then the remedy is by application to the legislature to be relieved of a burden which is a substantive matter; namely the right of a county to be reimbursed by the state for expenses incurred which only nominally are local.

This leads us to the real question in this case, whether the designation of the scope of the transcript on appeal in a criminal case is a procedural or substantive matter. If a rule takes away a vested right it is not procedural. If the rule creates a right such as the right to appeal it may be classified as a substantive matter, but if it operates as a means of implementing an existing right then the rule deals merely with procedure.

The question presented in this case might be answered by simply citing In re Paiva, 31 Cal.2d 503, 190 P.2d 604. The gist of that decision is that when a writ of error coram nobis is sought in a criminal case “upon appeal from the order disposing of such motion the right of the defendant to be furnished a legal record on appeal, insofar as the payment of costs is concerned, is the same as upon any other appeal allowed by law to a defendant in a criminal case.” Supra, 31 Cal.2d at page 510, 190 P.2d 609. The court concluded that the costs and expenses of a transcription of testimony and proceedings should not be at the expense of the accused. Respondents herein contend that the conclusion in the Paiva case was reached without reference to the Richards case. However, the Richards case is not authority for denying a transcript of the evidence to an appealing defendant.

The Constitution of California, Article VI, section 1a, subdivision 5, authorizes the Judicial Council to “Adopt or amend rules of practice and procedure for the several courts not inconsistent with laws that are now or that may hereafter be in force.” Penal Code, section 1247k provides that, “The Judicial Council shall have the power to prescribe by rules for the practice and procedure on appeal, and for the time and manner in which the records on such appeal shall be made up and filed, in all criminal cases in all courts of this State. The Judicial Council shall report the rules prescribed by it to the Legislature on or before March 31, 1943. The rules reported as aforesaid shall take effect on July 1, 1943, and thereafter all laws in conflict therewith shall be of no further force or effect.” The Code of Civil Procedure, section 274, provides that, “In criminal cases in which the court specifically so directs the fee for reporting and for a transcript ordered by the court to be made must be paid out of the county treasury on the order of the court, except that when a daily transcript is ordered as provided in Section 269 of this code then said section shall be applicable.” The mentioned section, 269, deals with filing a transcript known as a daily transcript. Section 274 of the Code of Civil Procedure primarily covers the fee for reporting additional matters. The quoted portion of section 274 was a part of that section prior to the decision in the Paiva case. In that case the court refused to follow the philosophy of denying to a defendant who had a right of appeal “the right to the record * to implement that appeal”. It was further stated that, “There is no question but that on appeal from the judgment or from the order denying a new trial the defendant is entitled, on timely application, to have the record on appeal furnished by the state. (See § 274, Code of Civil Procedure.)” 31 Cal.2d at page 508, 190 P.2d at page 607.

Although respondent contends that its interpretation of section 274 was not called to the attention of the Supreme Court in the Paiva case, mere reading of the section indicates that the real purpose of that section was to fix fees for court reporters. It is found in the Code of Civil Procedure chapter entitled “Phonographic Reporters”. It permits the court in criminal cases in its discretion to specifically direct certain reporting and transcribing and further directs that the fees therefor must be paid “out of the county treasury on the order of the court”. It has reference to matters that may be needed in the conduct of a trial, or in some motion subsequent to trial.

Code of Civil Procedure, section 274, as it now reads, when considered with the present methods on appeal, is not inconsistent with the Judicial Council rules on appeal. On the contrary, it is in harmony therewith, particularly with the agreed and settled statement form of criminal appeal. In the Paiva case the Supreme Court cited section 274, but it did so only in emphasizing its view that costs and expenses of a transcript of testimony in a criminal case to be used on appeal should be furnished by the county in a proceeding in the nature of a writ of error coram nobis just the same as in a direct appeal from a judgment of conviction or from the denial of a motion for a new trial.

The attorney general's brief expresses its fear of dire results if it should be decided that a convicted defendant, in a criminal case, who has the right of appeal, is to be given a transcript of the evidence without charge. It is suggested that great injury will accrue to the state or the county if the whole of the evidence is transcribed and the convicted defendant is not forced to pay the reporter's fees, and attention is called to the fact that some persons accused of crime are able to pay for a transcript of the evidence. These objections are mere trifles in considering the effort of the People of the State of California to see that all convicted persons, rich or poor, may be given as a matter of right and justice the procedural “implements” of a review on appeal.

The elimination of the burden from the trial court of determining whether a convicted defendant has sufficient financial means to pay for a transcript of evidence is a step toward fairness in giving every one the first essential of an adequate appeal. The fact that a defendant has an attorney of known ability or that the defendant is out on bail or that he or a relative is reputed to be one of financial means are tests that may result in an injustice to an appellant.

It must be assumed that the Judicial Council investigated the necessity of supplying all appealing defendants with a transcript of the evidence in consonance with the provisions of Article VI, section 1a of the California Constitution and the wisdom of the legislature as expressed in Penal Code section 1247k. In addition, the Judicial Council must have realized that reviewing courts should have a complete transcript of the evidence and, under certain circumstances, of the instructions and other proceedings. Augmentation of the record often results in delayed justice to the People of the State or to the accused. Though error may appear in a partial transcript of the record, a new trial may not be granted “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” Constitution of California, Art. VI, § 41/212.

The Court Reporter of the Superior Court of Marin County is hereby ordered to forthwith prepare and file the reporter's transcript of the oral proceedings of the trial of the defendant herein together with all instructions given upon the trial of said cause, which cannot be copied by the clerk, and the opening and closing arguments of the district attorney to the jury at and upon the trial of said cause, without requiring the payment by the appellant of any fees or costs for the transcription or preparation of the reporter's transcript. It is further ordered that the Judge of the Superior Court of Marin County is authorized and directed to make such orders as may be necessary to fulfill the foregoing order.

I dissent. I agree with the majority opinion (1) that all convicted persons should be given, on appeal, a transcript of the testimony without charge “as a matter of right and justice” and (2) that the Judicial Council, by the enactment of the new Rules on Appeal, intended to require the reporter, immediately upon the taking of the appeal by the defendant, to prepare and file the transcript, at county cost. However, I do not believe that the Judicial Council had the power to saddle that cost on a particular county.

The payment of the cost of the reporter's transcript is a substantive matter and not a matter of procedure or practice. It is different, too, than the assessing of costs in a civil case. As pointed out in the brief of the district attorney, appeals in a large percentage of criminal cases are never perfected and are abandoned, and yet the Judicial Council, under its power to provide rules of procedure, has attempted to place the cost of the transcripts in such cases on the particular county in which the notice of appeal is filed.

The majority opinion, in effect, admits that making the requirement that a free transcript be given every appellant in a criminal case would be, in the first instance, a matter of substantive law, but holds that in California the defendant has always had such right; hence the new rules merely change the procedure. The basic question involved here, then, is whether prior to July 1, 1943, the effective date of these rules, such right existed. If it did not, the Judicial Council had no power to establish such right.

Surprisingly enough, there is no inherent right in a defendant to a free transcript on appeal.¹ At common law the defendant in general, bore all costs. As late as 1902, in North Carolina, South Carolina, Indiana, Alabama, Illinois, New Jersey, Georgia, Mississippi, Pennsylvania, and Massachusetts, the defendant could be required to pay costs. 1 Archbold's Criminal Practice and Pleading, 8th ed., notes, pp. 595–597. In 1930 there were only seven states which furnished the transcript on appeal free to the defendant. Under federal jurisdiction and in twenty-eight of the states the defendant was required either to pay or give bond. American Law Institute, Code of Criminal Procedure, pp. 1266–1270. California is included in the category of those requiring defendant to pay, although questioned. Page 1267. Apparently only seventeen states provided for free transcripts in cases where application is made in forma pauperis. Pages 1270–1273.

As said in Irwin v. County of Yuba, 119 Cal. 686, 52 P. 35, concerning claims of members of the board of supervisors for per diem mileage and services, “It may be safely stated as a rule that one who demands payment of a claim against a county must show some statute authorizing it, or that it arises from some contract, express or implied, which itself finds authority of law. It is not sufficient that the services performed, for which payment is claimed, were beneficial.” 119 Cal. at page 690, 52 P. at page 37. The only provision for the payment for transcripts in criminal cases in 1943 and now, is that contained in section 274 of the Code of Civil Procedure. It provides: “In criminal cases in which the court specifically so directs the fee for reporting and for a transcript ordered by the court to be made must be paid out of the county treasury on the order of the court *; provided, however, that in any case, the court shall not order to be transcribed and paid for out of the county treasury any matter or material other than that reported by said reporter as prescribed in paragraph one of Section 269 of this code; *.”

Section 269, after setting forth the duties of the reporter at the trial, provides: “* and if directed by the court, or requested by either party, [the reporter] must, within such reasonable time after the trial of such case as the court may designate, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing-machine, and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court.”

Thus it appears that the Legislature at no time provided that a defendant should be entitled to a free transcript. It left the matter entirely in the discretion of the court, and then only when the court had directed the reporter to prepare such transcript, and such transcript must contain nothing more than what the court ordered to be included therein. The Legislature emphasized this fact, because in several places it refers to the necessity for the court order, “in which the court specifically so directs”—“for a transcript ordered by the court to be made”—“paid out of the county treasury on the order of the court”—provided that “the court shall not order to be transcribed and paid for out of the county treasury *.”

The majority opinion construes Richards v. Superior Court, 145 Cal. 38, 78 P. 244, to hold that the general purpose of section 274 of the Code of Civil Procedure “was to give the convicted defendant the right of appeal without being charged with costs, except that such costs should be subject to the approval of the trial court.” But the case does not so hold. There the petitioner took the position that, as a defendant in a criminal case, he was entitled to a free transcript on appeal, and asked that the Supreme Court mandamus the superior court reporter to make a transcript and the judge to designate a reasonable time within which it should be made. The court denied the petition, saying: “* to sum up, we hold that it is the duty of the phonographic reporter to comply with the request made by either of the parties litigant, only upon payment to him of his fees; that it is his duty, when ordered by the court, to furnish transcripts, his fees being then a charge upon the county treasury.” Emphasis added; 145 Cal. at pages 41–42, 78 P. at page 245. If, as now claimed by the majority opinion, a defendant was entitled to a free transcript, the court would have granted the writ. The case holds in so many words that the defendant had no such right, for the court said, 145 Cal. at pages 40–41, 78 P. at page 245: “A defendant in a criminal case, like a defendant in a civil case, is chargeable with fees as to all matters, saving those from the payment of which he is especially exempted by law. He is so especially exempted as to certain matters. He is exempted from bearing all or any part of the costs of his trial. Upon his appeal the state, in its liberality, requires the county clerk to prepare and print, as a county charge, his transcript. By express enactment of law, no fee is exacted for the filing of his papers upon appeal in this court. But each and all of these exemptions are matters of express statutory enactment. Where the Codes are silent, the costs are still thrown upon a defendant in a criminal case, as well as upon a defendant in a civil case. Thus the defendant must himself pay for the printing of the brief which he presents to this court. The same holds true when a demand is made directly upon the phonographic reporter for a transcript of all or any part of the proceedings upon his trial. If he orders it himself he must pay for it himself, and until he pays the phonographic reporter is not compelled to do the work.” As pointed out in the opinion, there is express authority for giving defendant a free clerk's transcript. The very fact that there is no such authority for a reporter's transcript is significant. The court then goes on to discuss the situation in which a defendant is entitled to a transcript at county expense. “If he is unable to pay, an appeal may always be made to the judge, who will thus have an opportunity to review the request, and to designate the transcription of such portions of the record as may be fit and necessary for the purpose intended, and in such cases the rights of the county are preserved, in that the expenses of an excessive transcript are not cast upon it, and, upon the other hand, the defendant's rights are fully protected, since, without cost to him, he has obtained all that he is entitled to present upon his appeal.” 145 Cal. at page 41, 78 P. at page 245.

Assuming that the construction given in the majority opinion is correct, namely, that section 274 gives the defendant the right to a transcript without cost “except that such costs should be subject to the approval of the trial court,” we would have the anomolous situation that the approval of the trial court would be a mere idle act as the defendant was entitled to the free transcript anyhow—or the converse, that if the court had any power to disapprove, the defendant would be denied the free transcript to which the majority opinion says he is entitled. In any event, the majority agree that the Richards case holds that the defendant's right to a transcript, whatever that right might be, was subject to the approval of the court. It, then, was a limited right. The Judicial Council had no power to change that limited right into an unlimited one, because such a change is a matter of substantive law, not merely of procedure or practice.

If the Judicial Council, under its rule making power, can thus change a limited right to an unlimited one, they could require the payment of fees in the cases where the court appoints an attorney to represent a defendant. It was held in Rowe v. Yuba County, 17 Cal. 61, that the court had the power to appoint members of the Bar to defend “pauper prisoners” but that the court had no authority to create a charge against the county for the services of the attorneys so appointed. By analogy, if the Judicial Council can make the rule questioned here, it can provide that the services of attorneys when appointed by the court to represent defendants in criminal cases, may be made a charge against the county treasury.

The majority's construction is the same as that of the petitioner in the Richards case, concerning which the court said, 145 Cal. at page 41, 78 P. at page 245: “The construction contended for by petitioner would lead to unbearable abuses and untold extravagance. It would result that in every criminal case in which a conviction was had, by the mere request of the defendant, he could cause every word of the proceedings to be transcribed, and the cost of the transcription made a burden upon the county. Under such a system it would, at least, be a question whether or not the state could not better permit the depredations of felons to go unpunished, as causing the community less loss than would their successful prosecution to conviction.”

Apparently the majority opinion makes some differentiation between the Richards case and ours, on the fact that there, the defendant wanted the transcript to enable him to prepare a bill of exceptions, the opinion thereby indicating that his method of appeal had something to do with the denial of a transcript. But the case does not differentiate between an appeal by a bill of exceptions and one on the record. It is obvious that the court's denial to him of a free transcript had nothing to do with the method of appeal.

In re Paiva, 31 Cal.2d 503, 190 P.2d 604, is not necessarily in conflict with my views. In that case the court was concerned primarily with the nature of a proceeding in coram nobis. Having determined that it was “a part of the proceedings in the case to which it refers”, 31 Cal.2d at page 509, 190 P.2d at page 608, which case was a criminal one, the court said that “upon appeal from the order disposing of such motion the right of the defendant to be furnished a legal record on appeal, insofar as the payment of costs is concerned, is the same as upon any other appeal allowed by law to a defendant in a criminal case.” 31 Cal.2d at page 510, 190 P.2d at page 609.

The dissenting opinion took the position that defendant was not entitled to a free transcript in what it called a special proceeding, unless he made an application in forma pauperis. However, it is obvious that the court assumed that a defendant in a criminal case is entitled to a free transcript on appeal, and then went on to determine whether on coram nobis the defendant was in the same position as on appeal. The matter was determined in the one sentence above quoted, plus one other sentence referring to section 274 of the Code of Civil Procedure. The ruling in the Richards case was not considered, nor was there any analysis of section 274.

If the Legislature desires to provide a free transcript in all cases (and I believe that it should) it can also provide some safeguards against the situation mentioned in the Richards case, supra. The Judicial Council did not have the power to take away from the judge the right of approval set forth in section 274. Particularly is this so when it is remembered that, while the Judicial Council Rules provide that the reporter must prepare and file the transcript immediately after the notice of appeal is filed, there is no way in which he can be paid for it out of county funds unless on the order of the court. Sec. 274, Code Civ.Proc.

I cannot agree that the new rules are not inconsistent with that section. If the court reporter, on the filing of the notice of appeal, is automatically required to furnish a transcript at county expense, how does that jibe with the provision, first, that the reporter cannot be paid except on court order, and secondly, that the court order for payment of reporter's fees must be predicated upon a previous order of the court for the transcript? And what becomes of the provisions in section 269 which give the court or counsel the right to designate “such specific portions” as they may request? Under the Judicial Council Rules, automatically the reporter must prepare a transcript “of the oral proceedings” at the trial and on the motion for new trial, excluding certain matter. Provision is made for the appellant to request the inclusion of additional matters. But there is no provision for either the court or counsel to designate that only a portion of the oral proceedings need be written up, to present the appellant's points on appeal. Even though the appellant might want to present on appeal some question of law, which would require a very short transcript, the reporter must prepare at county expense the entire transcript.

The Judicial Council is authorized by section 1(a) of article VI of the Constitution to “(5) Adopt or amend rules of practice and procedure for the several courts not inconsistent with laws that are now or that may hereafter be in force.” (Emphasis added.)

The Judicial Council's Rules attempting automatically to cause the filing of the reporter's transcript, making it a charge on the county, are inconsistent with section 274 of the Code of Civil Procedure, which provides: “In criminal cases in which the court specifically so directs the fee for reporting and for a transcript ordered by the court to be made must be paid out of the county treasury on the order of the court.” (Emphasis added.) The motion should be denied.

FOOTNOTES

1.  (Except of course, where a showing is made in forma pauperis. The question presented here does not concern applications of that type, and hence they will not be mentioned further in this opinion.)

BRAY, J., dissenting.