A-31864, JUNE 7, 1930, 9 COMP. GEN. 503

A-31864: Jun 7, 1930

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THE DEFENDANT WAS CONVICTED OF MURDER ON A GOVERNMENT RESERVATION AND ALLEGES ERROR. THAT THE SAID DEFENDANT HAS HERETOFORE FILED IN THIS COURT AN APPLICATION IN WHICH IT IS STATED THAT THE SAID DEFENDANT IS A MAN WITHOUT MEANS OR FRIENDS OR RELATIVES WHO HAVE MEANS WITH WHICH TO PAY THE SAID EXPENSE. IT BEING FURTHER WITHIN THE KNOWLEDGE OF THE COURT THAT THE SAID JOHN RAMSEY WAS CONVICTED OF MURDER AND ALLEGES ERROR AND DESIRES TO APPEAL FROM THE JUDGMENT AND SENTENCE. THAT IT WILL BE IMPRACTICAL IF NOT IMPOSSIBLE FOR THE SAME TO BE AGREED UPON BETWEEN COUNSEL AND SET FORTH IN NARRATIVE FORM AND THE SAME BEING AN IMPORTANT CASE INVOLVING A LIFE SENTENCE. "IT IS THEREFORE ORDERED. WAS SUBMITTED TO THE COURT.

A-31864, JUNE 7, 1930, 9 COMP. GEN. 503

COURTS - COSTS IN PAUPER PROCEEDINGS - TYPEWRITTEN TRANSCRIPTS THE PROVISION IN THE ACT OF JUNE 20, 1892, 27 STAT. 252, AS AMENDED BY THE ACTS OF JUNE 25, 1910, 36 STAT. 866, AND JUNE 27, 1922, 42 STAT. 666, AUTHORIZING THE PRINTING OF THE RECORD ON APPEAL OR WRIT OF ERROR FOR THE BENEFIT OF A PAUPER DEFENDANT AT THE EXPENSE OF THE UNITED STATES IN A CRIMINAL PROCEEDING, DOES NOT AUTHORIZE OR REQUIRE THE FURNISHING TO A PAUPER DEFENDANT OF A TYPEWRITTEN TRANSCRIPT OF THE RECORD AT THE EXPENSE OF THE UNITED STATES OR WITHOUT CHARGE BY THE STENOGRAPHER WHO REPORTED THE PROCEEDINGS UPON A PIECEWORK BASIS AT A SPECIFIED RATE PER HOUR AND/OR PER FOLIO OR PAGE. THE QUESTION OR REQUIRING A STENOGRAPHER EMPLOYED ON AN ANNUAL SALARY BASIS, IF SUCH A ONE REPORTED THE PROCEEDINGS, TO FURNISH A TYPEWRITTEN TRANSCRIPT WOULD BE AN ADMINISTRATIVE MATTER.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JUNE 7, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 14, 1930, FILE JWS 224,157, AS FOLLOWS:

THIS DEPARTMENT HAS RECEIVED AN APPLICATION FROM THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF OKLAHOMA TO INCUR AN EXPENSE ESTIMATED AT $1,850.00 FOR FURNISHING TO THE DEFENDANT, IN A CAPITAL CASE, AN ORIGINAL AND ONE CARBON COPY OF THE TRANSCRIPT OF TESTIMONY IN ADDITION TO THE REQUIRED NUMBER OF COPIES FOR THE CIRCUIT COURT OF APPEALS. THE DEFENDANT WAS CONVICTED OF MURDER ON A GOVERNMENT RESERVATION AND ALLEGES ERROR, AND DESIRES TO APPEAL FROM THE JUDGMENT AND SENTENCE.

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MADE AN ORDER ON JANUARY 27, 1930, WHICH READS AS FOLLOWS:

"UNITED STATES OF AMERICA, PLAINTIFF, V. JOHN RAMSEY, DEFENDANT

"ORDER REQUIRING STENOGRAPHER TO MAKE TYPEWRITTEN TRANSCRIPT OF TESTIMONY IN JOHN RAMSEY CASE AT GOVERNMENT EXPENSE.

"NOW ON THIS 27TH DAY OF JANUARY, 1930, THIS MATTER CAME ON TO BE HEARD BEFORE ME, FRANKLIN E. KENNAMER, JUDGE OF THE DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF OKLAHOMA, OF THE UNITED STATES OF AMERICA, UPON THE APPLICATION OF THE DEFENDANT, JOHN RAMSEY, FOR AN ORDER REQUIRING THE STENOGRAPHER TAKING SAID TESTIMONY ON AND AFTER THE 24TH DAY OF NOVEMBER, 1929, TO TRANSCRIBE THE SAME AND MAKE CERTAIN TYPEWRITTEN COPIES AND FURNISH THE SAME TO COUNSEL OF RECORD AT THE EXPENSE OF THE GOVERNMENT, AND THE COURT AFTER BEING FULLY ADVISED IN THE PREMISES AND AFTER CAREFULLY CONSIDERING THE SAME FINDS, THAT THE SAID DEFENDANT HAS HERETOFORE FILED IN THIS COURT AN APPLICATION IN WHICH IT IS STATED THAT THE SAID DEFENDANT IS A MAN WITHOUT MEANS OR FRIENDS OR RELATIVES WHO HAVE MEANS WITH WHICH TO PAY THE SAID EXPENSE, AND IT BEING FURTHER WITHIN THE KNOWLEDGE OF THE COURT THAT THE SAID JOHN RAMSEY HAS HERETOFORE MADE APPLICATION FOR COUNSEL TO BE APPOINTED FOR HIM ON ACCOUNT OF HIS POVERTY AND HAS MADE WRITTEN APPLICATION HERETOFORE FOR THE TESTIMONY TO BE TAKEN AT HIS SAID TRIAL AT GOVERNMENT EXPENSE AND SAID VERIFIED APPLICATION HAS BEEN ALLOWED AND SAID TESTIMONY TAKEN, AND IT BEING FURTHER WITHIN THE KNOWLEDGE OF THE COURT THAT THE SAID JOHN RAMSEY WAS CONVICTED OF MURDER AND ALLEGES ERROR AND DESIRES TO APPEAL FROM THE JUDGMENT AND SENTENCE, AND ON ACCOUNT OF THE LARGE NUMBER OF WITNESSES, AND THE VOLUME OF TESTIMONY TAKEN CONSUMING SOME FIVE DAYS, THAT IT WILL BE IMPRACTICAL IF NOT IMPOSSIBLE FOR THE SAME TO BE AGREED UPON BETWEEN COUNSEL AND SET FORTH IN NARRATIVE FORM AND THE SAME BEING AN IMPORTANT CASE INVOLVING A LIFE SENTENCE.

"IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT THE SAID TESTIMONY BE TRANSCRIBED IN TYPEWRITTEN FORM AND COPIES FURNISHED COUNSEL FOR THE DEFENDANT AND COUNSEL FOR THE GOVERNMENT IN ADDITION TO THE COPIES FOR CIRCUIT COURT OF APPEALS.'

THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT HAS MADE THE FOLLOWING ORDER IN RESPECT TO THE APPEAL IN THIS CASE:

"JOHN RAMSEY VS. UNITED STATES

"THIS CAUSE CAME ON TO BE HEARD ON THE PETITION OF THE APPELLANT FOR LEAVE TO PROCEED AS A POOR PERSON AND FILE A LITERAL TRANSCRIPT OF THE TRIAL PROCEEDINGS AS PART OF THE RECORD HEREIN, IN LIEU OF THE BILL OF EXCEPTIONS, AND WAS SUBMITTED TO THE COURT.

"ON CONSIDERATION WHEREOF, IT IS NOW HERE ORDERED BY THIS COURT THAT THE SAID APPELLANT BE AND HE IS HEREBY PERMITTED TO PROSECUTE HIS APPEAL IN THIS COURT WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS IN THIS COURT OR TO GIVE SECURITY THEREFOR, AND THE CLERK OF THIS COURT IS HEREBY DIRECTED TO DOCKET THE CAUSE IN ACCORDANCE WITH THIS ORDER AND FILE THE TYPEWRITTEN TRANSCRIPT OF THE RECORD FROM THE DISTRICT COURT WHEN THE SAME SHALL BE PRESENTED.

"IT IS FURTHER ORDERED BY THE COURT THAT THE MOTION TO FILE, AS PART OF THE RECORD HEREIN, A LITERAL TRANSCRIPT OF THE TRIAL PROCEEDINGS NOT REDUCED TO NARRATIVE FORM AS REQUIRED BY THE RULE OF THIS COURT, IN LIEU OF A BILL OF EXCEPTIONS, BE AND THE SAME IS HEREBY DENIED.'

IT WILL BE OBSERVED THAT THE APPELLANT, JOHN RAMSEY, IS WITHOUT FUNDS, AND THE COURT ORDER IS BASED UPON HIS CONDITION OF INDIGENCY. SECTION 878, R.S., PROVIDES AS FOLLOWS:

"WHENEVER ANY PERSON INDICTED IN A COURT OF THE UNITED STATES MAKES AFFIDAVIT, SETTING FORTH THAT THERE ARE WITNESSES WHOSE EVIDENCE IS MATERIAL TO HIS DEFENSE; THAT HE CAN NOT SAFELY GO TO TRIAL WITHOUT THEM; WHAT HE EXPECTS TO PROVE BY EACH OF THEM; THAT THEY ARE WITHIN THE DISTRICT IN WHICH THE COURT IS HELD OR WITHIN ONE HUNDRED MILES OF THE PLACE OF TRIAL; AND THAT HE IS NOT POSSESSED OF SUFFICIENT MEANS, AND IS ACTUALLY UNABLE TO PAY THE FEES OF SUCH WITNESSES, THE COURT IN TERM, OR ANY JUDGE THEREOF IN VACATION, MAY ORDER THAT SUCH WITNESSES BE SUBPOENAED IF FOUND WITHIN THE LIMITS AFORESAID. IN SUCH CASE THE COST INCURRED BY THE PROCESS AND THE FEES OF THE WITNESSES SHALL BE PAID IN THE SAME MANNER THAT SIMILAR COSTS AND FEES ARE PAID IN CASE OF WITNESSES SUBPOENAED IN BEHALF OF THE UNITED STATES.'

THE ACT OF CONGRESS APPROVED JULY 20, 1892 (27 STAT. 252), AS AMENDED BY THE ACTS OF JUNE 25, 1910 (36 STAT. 866), AND JUNE 27, 1922 (42 STAT. 666), CONTAINS THE FOLLOWING SECTIONS HEREIN APPLICABLE:

"SECTION 1. THAT ANY CITIZEN OF THE UNITED STATES ENTITLED TO COMMENCE ANY SUIT OR ACTION, CIVIL OR CRIMINAL, IN ANY COURT OF THE UNITED STATES, MAY, UPON THE ORDER OF THE COURT, COMMENCE AND PROSECUTE OR DEFEND TO CONCLUSION ANY SUIT OR ACTION, OR A WRIT OF ERROR OR AN APPEAL TO THE CIRCUIT COURT OF APPEALS, OR TO THE SUPREME COURT IN SUCH SUIT OR ACTION INCLUDING ALL APPELLATE PROCEEDINGS, UNLESS THE TRIAL COURT SHALL CERTIFY IN WRITING THAT IN THE OPINION OF THE COURT SUCH APPEAL OR WRIT OF ERROR IS NOT TAKEN IN GOOD FAITH, WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS OR FOR THE PRINTING OF THE RECORD IN THE APPELLATE COURT OR GIVE SECURITY THEREFOR, BEFORE OR AFTER BRINGING SUIT OR ACTION, OR UPON SUING OUT A WRIT OF ERROR OR APPEALING, UPON FILING IN SAID COURT A STATEMENT UNDER OATH IN WRITING, THAT BECAUSE OF HIS POVERTY HE IS UNABLE TO PAY THE COSTS OF SAID SUIT OR ACTION OR SUCH WRIT OF ERROR OR APPEAL, OR TO GIVE SECURITY FOR THE SAME, AND THAT HE BELIEVES THAT HE IS ENTITLED TO THE REDRESS HE SEEKS IN SUCH SUIT OR ACTION OR WRIT OF ERROR OR APPEAL, AND SETTING FORTH BRIEFLY THE NATURE OF HIS ALLEGED CAUSE OF ACTION, OR PPEAL: PROVIDED, THAT IN ANY CRIMINAL CASE THE COURT MAY, UPON THE FILING IN SAID COURT OF THE AFFIDAVIT HEREINBEFORE MENTIONED, DIRECT THAT THE EXPENSE OF PRINTING THE RECORD ON APPEAL OR WRIT OF ERROR BE PAID BY THE UNITED STATES, AND THE SAME SHALL BE PAID WHEN AUTHORIZED BY THE ATTORNEY GENERAL.

"SECTION 5. THAT JUDGMENT MAY BE RENDERED FOR COSTS AT THE CONCLUSION OF THE SUIT AS IN OTHER CASES: PROVIDED, THAT THE UNITED STATES SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED.'

ALTHOUGH THE STATUTE PERMITS THE PRINTING OF THE RECORD ON APPEAL OR WRIT OF ERROR, IN SUCH CASES, AT THE EXPENSE OF THE UNITED STATES, THERE IS APPARENTLY NO PROVISION FOR THE PREPARATION OF TYPEWRITTEN TRANSCRIPTS, EITHER FOR THE USE OF THE DEFENDANT OR FOR TRANSMISSION TO THE CIRCUIT COURT OF APPEALS FOR USE IN THAT COURT. IN THIS CONNECTION I MAY STATE THAT THE PROCEEDINGS WERE REPORTED BY A STENOGRAPHER EMPLOYED BY THE GOVERNMENT TO REPORT THIS CASE.

YOUR DECISION IS RESPECTFULLY REQUESTED WHETHER THE PROPOSED EXPENDITURE MAY PROPERLY BE PAID FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES, U.S. COURTS, 1930," OR FROM ANY OTHER APPROPRIATION UNDER THE CONTROL OF THIS DEPARTMENT.

PRIOR TO THE AMENDMENT OF SECTION 1 OF THE ACT OF JULY 20, 1892, QUOTED IN YOUR SUBMISSION, BY THE ACT OF JUNE 25, 1910, IT HAD NO APPLICATION TO CRIMINAL CASES. BRISTOL V. UNITED STATES, 129 FED.REP. 87; VIRGINIA V. FELTS, 133 FED.REP. 85. THE AMENDMENT OF 1910 EXTENDED ITS PROVISIONS TO INCLUDE CRIMINAL CASES, BUT MADE NO PROVISION FOR THE COST OF PRINTING RECORDS ON APPEAL OR WRIT OF ERROR. 26 COMP. DEC. 362. THE AMENDMENT OF 1922 ADDED THE SECOND SENTENCE WITH RESPECT TO THE PRINTING OF RECORDS ON APPEAL OR WRIT OF ERROR. BOTH BEFORE AND AFTER THE 1922 AMENDMENT, IT HAS BEEN HELD THAT DISTRICT COURTS WERE NOT EMPOWERED TO ORDER A TRANSCRIPT OF THE RECORD TO BE FURNISHED EITHER AT THE EXPENSE OF THE UNITED STATES OR BY THE COURT REPORTER WITHOUT COMPENSATION. UNITED STATES V. FAIR, 235 FED.REP. 1015; UNITED STATES EX REL. ESTABROOK V. OTIS, 18 FED.REP. (2D) 689.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE INFORMED THAT THE COST OF PREPARING A TYPEWRITTEN TRANSCRIPT OF THE TESTIMONY FOR THE USE OF THE DEFENDANT IN THE CASE OF THE UNITED STATES OF AMERICA V. JOHN RAMSEY IS NOT PAYABLE FROM ANY APPROPRIATION UNDER YOUR CONTROL, IT BEING ASSUMED THAT THE STENOGRAPHER WHO REPORTED THE CASE WAS EMPLOYED ON A PIECEWORK BASIS AT SO MUCH PER HOUR AND/OR PER FOLIO OR PAGE AND WAS NOT EMPLOYED ON AN ANNUAL SALARY. THE QUESTION OF REQUIRING AS STENOGRAPHER EMPLOYED UPON AN ANNUAL SALARY TO FURNISH AN ADDITIONAL TYPEWRITTEN TRANSCRIPT IF SUCH A STENOGRAPHER REPORTED THE CASE WOULD BE AN ADMINISTRATIVE MATTER.