MCCULLOCH V. BALLENTINE. MCCULLOCH V. BALLENTINE. 4-5740 135 S. W. 2d 673 Opinion delivered January 15, 1940. 1. CRIMINAL LAW—DEFENDANT'S RIGHT TO A BILL OF EXCEPTIONS.— Under § 2876, Pope's Dig., providing that "no party shall be denied his bill of exceptions on account of his inability to pay the stenographer's tax fee and for transcribing the stenographic notes when he makes affidavit that he has no property and is unable to pay the same," a defendant is, regardless of how poor he may be, entitled to a record of the proceedings in the court below to the end that these proceedings may be intelligently reviewed by the Supreme Court. 2. MANDAMUS.—In a criminal case, under circumstances rendering the provisions of § 2876, Pope's Dig., applicable, a court stenographer refusing to transcribe his notes of the proceedings at the trial may be required to do so by mandamus. 3. STATUTES—CONSTRUCTION.—Section 2876, Pope's Dig., is a general law, applicable to all official stenographers and applies to the stenographer of the twelfth judicial circuit as well as others although his position was created by a special act. [199 ARK.—PAGE 654]
MCCULLOCH y. BALLENTINE. 4. CRIMINAL LAW-RIGHT OF DEFENDANT TO A COMPLETE TRANSCRIPT. —Since § 3 of act No. 185 of the Acts of 1901, p. 339, relates to the fees of the clerk of the court only, the stenographer is required to make the transcript when called upon to do so under circumstances rendering § 2876 of Pope's Digest applicable even though the defendant is unable to pay for that service. Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed. • L. E. Lister, for appellant. H. C. Rains, for appellee. SMITH, J. Bill Ballentine prayed an appeal from the judginent of the Sebastian circuit court sentencing him to a term of twenty-one years in the penitentiary. The stenographer of the 12th judicial circuit, of which Sebastian county is a part and who had reported the trial, was called upon to transcribe his stenographic notes, to be used in the bill of exceptions required on the appeal. The stenographer refused to do so unless paid for that service. Thereupon, Ballentine made affidavit conforming to § 2876, Pope's Digest, which reads as follows: "In all cases no party shall be denied his bill of exceptions 6n account of his inability to pay the stenographer's tax fee and for transcribing the stenographic notes when he makes affidavit that he has no property and is unable to pay the same. Upon the stenographer refusing thereafter to transcribe his notes and to furnish a transcription thereof, mandamus was prayed and granted by the circuit judge of that circuit requiring the stenographer to do so, and from that order is this appeal. The case of Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203, is decisive of this appeal. That opinion announced the proper practice in similar cases to be for an application to be made to the presiding judge to compel the stenographer to perform his duty. This Ballen-tine did. After defining the practice it was there said: "We make these observations simply for the purpose of indicating that defendants, regardless of how poor they may be, are entitled to a record of the proceedings in the court below to the end that those proceedings may [199 ARK.—PAGE 655]
MCCULLOCH v. BALLENTINE. be intelligently reviewed by this court, and the remedy is ample to compel the court stenographer to prepare a bill of exceptions for authentication by the trial court." Appellant insists, however, that § 2876, Pope's Digest, above quoted, does not apply to the stenographer of the 12th judicial circuit, for the reason that this office was created by a special act, No. 185, of the Acts of 1901, p. 339 § 3 of which reads as follows : "That in all cases where the stenographer is called upon to make a transcript, he shall do so. Such stenographer's transcript to be- used as a part of record for supreme court without additional charge by the clerk." Upon the authority of this § 3, it is insisted that only the clerk is required to perform the service mentioned without charge, and . that the act does not require the stenographer to do so. This is true, and we must look to other portions of the -act and to other legislation to determine what charges the stenographer is permitted to make. When we have done so, we find that § 2876, Pope's Digest, is a general law, applicable to all : official court stenographers, and applies to the stenographer of the 12th judicial circuit as well as to all other official stenographers. The only part of this § 3 dealing with official fees relates to the fees of the clerk of the court. The stenographer is required to make the transcript when called upon to do so, and if he does so under circumstances which make § 2876 applicable, as is the case here, he must do so even though Ballentine is unable to pay for that service. The judgment of the court below is correct and is affirmed. [199 ARK.—PAGE 656]
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