The sole issue on this appeal is whether appellant was denied his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States by reason of the trial court’s refusal to grant his pretrial motion, made as a poor person, to take depositions and for stenographic services.
By the verdict of a jury appellant was found guilty of the commission of the crime of murder in the first degree. Having been found to be a second offender under § 556.280, RSMo 1959, V.A.M.S., appellant was sentenced by the court to imprisonment for life in the Department of Corrections.
Appellant’s motion to take depositions and for free stenographic services therefor is to this effect: He moves the court to order and direct the court reporter or some other qualified stenographer or public stenographer, who is also a notary public, to take and transcribe the depositions of James M. Marshall, J. W. Lindsey, Robert Cash-man, Shelby Ward, Henry A. Sweets, M.D., J. O. Mudd, Alberta Hoover, Maybelle Beuterbaugh, Gene Grammer, and John Wesley Penn, at the expense of the State of Missouri, or County of Pike. It was stated in the motion that appellant was charged with the crime of murder in the first degree; had pleaded not guilty thereto on his arraignment; that he did not in fact commit said crime and that it was necessary to properly prepare his defense that depositions be taken of each of said persons and of any other persons who might be endorsed as witnesses by the state; that he had no funds to employ a court reporter or stenographer; and that he is indigent. The motion was overruled on September 19, 1966, and the trial began on February 27, 1967. The persons named in the motion testified at the trial except J. W. Lindsey, Robert Cashman, and May-belle Beuterbaugh.
Supreme Court Rule 25.10, V.A.M.R., provides: “A defendant in any criminal
While the motion was granted in the Germany case, supra, it has been held that a motion made under Rule 15 is addressed to the discretion of the trial court; that it is to be granted only in “exceptional situations”; that the moving party has the burden of demonstrating the availability of the proposed witnesses and their willingness to appear; the materiality of the testimony which it is expected they will give; and that injustice will result if the motion is denied. United States v. Whiting (C.A.N.Y.1962), 308 F.2d 537, 541 [4, 5], cert. den. 372 U.S. 919, 83 S.Ct. 734, 9 L.Ed.2d 725.
Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, also relied upon by appellant, concerns only the furnishing of a transcript of the record to an indigent defendant, which transcript was necessary for him to present on appeal alleged prejudicial errors occurring during trial.
Appellant has not shown how he was or could have been prejudiced by the refusal of the trial court to provide free stenographic services in the taking of depositions. Upon the positive and strong testi
Complied with are matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.
The judgment is affirmed.
PER CURIAM:
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.
All of the Judges concur.