Keady v. Owers as Judge of Fifth Judicial District

30 Colo. 1 | Colo. | 1902

Chief Justice Campbell

(after the foregoing statement) delivered the opinion of the court.

1. That this court has jurisdiction under the constitution to grant writs of mandamus is beyond cavil. No argument is required to establish so plain a proposition. The jurisdiction is derived from section 3 of article VI of the constitution, and is in no sense dependent upon statute. It is conceded that the stenographer is an officer of the court. While mandamus might go against the court to compel one of its subordinate officers to do an official act, which the law enjoins upon him, we think it clear that the writ may, in a proper case, also be directed to the subordinate official himself. No objection moreover is made upon the ground that the writ should go, if at all, to the court, and not to its subordinate officer.

One of the duties of the stenographer when directed by the court, is to take down the proceedings occurring at a trial, and his compensation therefor is paid by the county. Indeed the chief object of having this done is not for the benefit of the trial court, but that, in case of a review of the judgment, a full and complete record of the proceedings may be written out to be laid before the appellate tribunal. We must assume that since it appears that the stenographer did take down in shorthand the proceedings occurring at this trial, it was in pursuance of an order of the court. For years it has been, and now is, the practice in this state, for lawyers, in the preparation of bills of exception, to depend upon a transcript of the proceedings prepared by the official stenographer. It is true that, in case a judge neglects or refuses to sign a bill of exceptions, a bill may be made and attested by affidavits of two or more attorneys or other persons who were present at the time of the trial. This, however, if applicable to criminal cases, is only one, not an exclusive, method of preparing a bill. A litigant is not compelled to resort to that method when the official stenographer is present at the trial and has taken down in shorthand the proceedings. It is the duty of the stenographer therefore to furnish a litigant with such transcript when demand therefor is made and payment or offer of payment for doing the work is tendered; and while that duty is not expressly mentioned in the statute, it is specially enjoined as a duty resulting from his office, clearly implied from the nature of the office and the duties pertaining to it. The stenographer who took down the examination of this jnror has his notes and may readily comply with petitioner’s request, and no reason has been given why it should not be granted.

The order of the judge of the court not to furnish it is no excuse or justification whatever. It does not lie either with the judge or stenographer to say that the action of the trial court in excusing a juror is not -a proper subject matter of review in an appellate tribunal. It is for the latter to determine that fact from the entire proceedings bearing upon that particular point; and while we do not presume to pass upon any error that may be assigned based on the order of discharge, it is sufficient at present to say that the defendant is entitled to a transcript of the examination of the juror by the court, which led up to his discharge from the panel, that the appellate tribunal may have the same before it in order to determine whether, as here charged by the defendant, the court committed prejudicial error in making the same.

If, as contended by respondent, the matter of excusing a juror by the court, after he has been accepted by the parties, involves the exercise of judicial discretion, that means a sound discretion, and if grossly abused, it is subject to review by an appellate court. And if, in the absence of something in the record justifying the court in depleting the panel, prejudicial error to the objecting party be presumed, nevertheless, the appellate tribunal should have a full record of the proceedings bearing upon the question in order that substantial justice be done to the people as well as the defendant.

We have not the slightest doubt that petitioner is entitled to the writ prayed for, and that the answers of the respondents are entirely insufficient.

2. We shall not now concern ourselves with any personal controversy that may exist between the judge of the court and the juror who was excused from the panel. This is not the appropriate occasion for airing or deciding any such dispute. If the defendant has a legal right to a transcript of the examination of the juror, as conducted by the trial court, for incorporating it into a bill of exceptions to be used' upon a review of the judgment in the case tried, he cannot be deprived of that right, and the stenographer may not refuse to furnish the record, merely because by transcribing the same some supposed benefit will accrue to the juror, or some imaginary disadvantage be suffered by the district attorney in some possible future prosecution of the juror. The alleged defense of the judge of the court upon this ground is wholly untenable.

There is no necessity, at the present time, to command the judge to furnish this transcript, even though his stenographer’s refusal to give it is based on the order of his superior. We rightly presume that the stenographer will promptly comply with whatever order this court makes, and that such compliance will afford ample relief to petitioner. The rule to show cause is, therefore, discharged as to the judge, sustained as to the stenographer, and as to •him, the writ, as prayed for, is made permanent.

Writ alloioed.