106 Iowa 688 | Iowa | 1898
I. On the twenty-seventh day of September, 1898, the appellant served and filed an additional abstract, which shows that on September 20, 1898, Henry Bank, Jr., J., who tried the case and heard the said application, certified that the affidavit of defendant set out in the certificate, and which is the same shown in the abstract as quoted above, was all the evidence introduced at the hearing of said application. To said additional abstract is appended the certificate of the attorney for appellant that said additional abstract, together with the original abstract, “constitute the evidence, and all of the evidence, offered at or during, or which had reference to, the hearing of defendant’s application for a transcript at the county’s expense.” Appellee’s counsel move to strike this additional abstract upon the grounds that it was not filed until after appellee’s argument; that it is not a bill of exceptions, and was not filed in the court below, or made a part of the record. The filing of this additional abstract was no doubt suggested by the claim of counsel for the state in their argument that the original abstract was not certified by either the judge, reporter, or attorney as containingall the record or all the evidence. It will be observed that this additi on al abstract discloses nothing more than what was contained in the original, except that it certifies that the only evidence upon which said application was heard was the affidavit of the appellant, which, as we have seen, appears at length in the original
II. This application is made under section 254 of the Code, which contains the following: “If a defendant in a criminal cause has perfected an appeal from a judgment against him, and shall satisfy a judge of the court from which the appeal is taken that he is unable to pay for the transcript of the evidence, such judge may order the same made at the expense of the county.” Counsel discuss the question whether, the judge being satisfied that the appellant is unable to pay for a transcript, it is imperative upon him to grant an order. The difference between the prior statute (section Sill, -Code 1813), as construed in State v. Waddle, 94 Iowa, 748, and the present statute, is pointed out, and authorities cited as to when permissive language will be held to be imperative. Appellant also contends that, conceding that it was discretionary with the judge whether or not to grant this order, there was such an abuse of that discretion as to call for a reversal. In the view we take of this last contention, it is unnecessary that we consider the first. There, can be no question that, if the grounds stated for a new trial are well taken, the new trial should have been granted; and it is equally clear that a transcript of the evidence is indispensable to a full consideration of the defendant’s appeal from the judgment of conviction. The learned judge, holding it to be discretionary with him, refused the order, not because he was not satisfied that the