This case presents but one question to this court for determination. Appellants were convicted of crime in the court below, and thereafter took the usual proceedings to have their case heard in this court on appeal, but before a transcript of the court reporter’s rеcord of the trial could be made, the reporter died. It has been shown to this court, by sufficient proof, that no transcript of the deceased rеporter’s notes has been or can be made, and it has also been shown that appellants have at all times since the trial made diligent effоrts to obtain a transcript, but have failed through no fault of theirs, and they now make a motion asking that this court direct the trial court to grant them a new trial оn the ground that they cannot be heard on appeal from the judgment rendered.
The question is a novel one in this jurisdiction. In a number of jurisdictions the question has been presented upon a variety of facts, such as the death, resignation or removal of the trial judge without settlement of the bill of exceрtions in jurisdictions where there is no provision for a settlement by such judge’s successor, the loss of the record, or the inability to obtain a transcript of the testimony because of the death of the reporter, or other reason. Cases wherein a party desiring to appeal was unable to оbtain a transcript by reason of the death of the reporter, have, in some jurisdictions, been distinguished from, those wherein the difficulty arose because of some inability of the judge. (Lidgerwood Mfg. Co. v. Rogers, 56 N. Y. Super. Ct. 350,
In England, a new trial is granted under such circumstances under Statute 13 Edward I, authorizing the taking and prеserving of exceptions. (Newton v. Boodle, 4 D. & L. 664, 3 Com. B. 795, 136 Eng. Reprint, 318; Benett v. Peninsular & O. S. B. Co., 16 Com. B. 29, 139 Eng. Reprint, 664.) In Massachusetts, the English cases are followed in Borrowscale v. Bosworth,
In some jurisdictions the English cases have been cited as authority for the rule that a new trial will be granted, while in others the same conclusion has been reached without reference to precedents, and in North Carolina this rule was established before the English cases herein cited were decided. (Hamilton v. McCulloch,
The appellants are in an unfortunate situation, brought about not by any act or failure of their own. The condition in which they are placed appeals strongly to the court. Has it the power to grant the relief prayed for?
The case of Richardson v. State, supra, is interesting, for the reason that the facts therein involved are very similar to those in the case at bar. The constitutiоn of Wyoming, defining the jurisdiction of the supreme court of that state, is as follows:
“The Supreme Court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal' causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.” (Art. 5, sec. 2.)
The statutory provision of Wyoming, bearing upon the question in hand, may be determined from the following quotation from thе opinion:
“Upon the hearing of a criminal case brought to this court by petition in error, the statute provides that the court ‘shall order the prisoner discharged, a new trial to be had, or,’ if the punishment be capital, ‘appoint a certain day for the execution of the sentence,’ or in other cases of conviction of felony or misdemeanor shall order ‘the original judgment to be enforced, as,’ in either-ease, ‘the nature of thе case may require.’ Rev. Stats. 1899, secs. 5423, 5424, as amended by chap. 63, secs. 2, 3, p. 65, Laws 1901.”
The motion for new trial in that case was not contested. On the contrary, the attorney general, who represented the state, and also the prosecuting attorney of the county in which the conviction was had, admittеd that there was mani
The jurisdiction of this court is limited by art. 5, see. 9, of our constitution, which is as follows:
“The Supreme- Court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof. Thе Supreme Court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all writs necessary or proper Jo the complete exercise of its appellate jurisdiction.”
The power of this court under the section above quoted was carefully considered in the case of Neil v. Public Utilities Commission, ante, p. 44,
In the Stenographer Cases,
For similar reasons in the following cases, analogous in principle, relief was denied: Etchells v. Wainwright,
This court in the case of In re Neil,
This right of appeal, of which one convicted of crime in a district court may avail himself, is a right to call for the exercise of such powers as this court possesses to review upon appeal the decisions of the district courts, or the judges thereof. The motion for a new trial in this ease is not addressed to the appellate jurisdiction of this court, and its consideration does not call for a review of any decision or action of the trial court. It is rather in the nature of an original proceeding in this court, which this court has not the power to entertain.
C. L., secs. 8071 and 8072, are as follows:
“Sec. 8071: Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.
“Sec. 8072: The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial.” ,
It is clear that the power to order a new trial, conferred by sec. 8072, is dependent upon a reversal of the judgment upon a review thereof on appeal.
The motion must be denied.