295 S.W. 997 | Ky. Ct. App. | 1927
Denying writ of prohibition.
On this petition for a writ of prohibition the petitioner, an expert stenographer, states that, upon the trial of James Howard on the charge of murder in the Jefferson circuit court, criminal division, the official stenographer of that court, John P. Cassilly, was ill, and that, by consent of the commonwealth, the defendant, and the court, the petitioner took the evidence heard in the case in shorthand; but he was not appointed as official stenographer, did not take any oath of office, nor was any order of court entered in reference to his participation in the case. The defendant on trial was found guilty, and his punishment fixed at death. His motion for a new trial was overruled October 6, 1926, and 60 days given within which to prepare and file a bill of exceptions for the purpose *692 of an appeal. On November 3d he was granted 60 days additional, within which to tender and file such appeal. On January 18, 1927, an order was entered permitting defendant to prosecute his appeal in forma pauperis and directing the officers of the court, including the stenographer, to furnish him service and transcripts without compensation. Petitioner was not advised of this order until February 8, 1927, when he declined to make the transcript, unless he was paid for it. On February 11th a rule was awarded against petitioner to show cause why he should not transcribe his notes and furnish a transcript of evidence to defendant. He responded, justifying his action on the grounds: (1) That he had never been sworn as an official in the case nor in that court at any time, and was not an officer of the court, and therefore the court was without authority to order him to furnish the transcript; (2) that the attorney for defendant had admitted in open court that he had received $15 to prosecute the appeal; (3) that more than 120 days had elapsed since final judgment before the "show cause" rule was issued, and no extension of time had been asked or granted by this court; hence same could not be extended, and, under section 1016, Ky. Statutes, the trial court was without authority to require him to make such transcript. His response was adjudged insufficient and the rule made absolute, and he now prays for a writ directing the trial judge to dismiss the rule against him.
The order entered by the trial court is not appealable; hence the only redress for petitioner is by a writ of prohibition. This may be granted if the trial court acted without or in excess of its jurisdiction, or if, acting within its jurisdiction, its action will result in a great and irreparable injury to the petitioner. State Constitution, section 110; Ohio River Contract Co. v. Gordon,
In assuming the duties of office and acting as stenographer in the trial with the consent of the court and the parties, even though no order of court was made in reference thereto and he was not sworn as such official, nevertheless he was a de facto officer. Wendt v. Berry,
Wherefore the motion for writ of prohibition is denied.