I concur in Paragraph II and the result reached in the opinion of OTTO, J.
As I view it, Section 12681 does not amend Section 4102 by implication so as to make it read in substance: "When any appeal shall be taken or writ of error filed, which shall operate as a stay of proceedings, it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause, including the bill of exceptions (if defendant shall furnish and pay for same or the court shall order the reporter to make same at the State's cost), judgment and sentence, and certify and return the same to the office of the clerk of the Supreme Court without delay." (Clause in parthenses mine.)
The court may determine whether the defendant is unable to pay the costs of a transcript of the stenographic notes and whether same should be furnished at the cost of the State. Its determination of that matter in this case is conclusive. The effect of the court's order is merely that the State shall not be required to pay the costs of such transcript, regardless of the outcome of the defendant's appeal or writ of error. Section 4102 requires the clerk to make out, certify and return a full transcript, including the bill of exceptions, etc., to this court without delay. No provision for the payment of costs is found in said section. Section 4103 throws light upon the legislative intent because it provides that the costs of such transcript "shall not be required in advance," even in cases where the appeal does not operate as a stay of proceedings.
The duty of the clerk to make out, certify and return a full transcript, including the bill of exceptions, when the appeal stays proceedings, and the necessarily inferred and included duty of the reporter to furnish a transcript of his stenographic notes to the clerk and counsel, to the end that the clerk may perform his duty, are not affected by the order of the court overruling defendant's request for a transcript of the stenographic notes at the cost of the State.
Although the court has refused to furnish to defendant such transcript of the stenographic notes at the cost of the State, it is nevertheless the duty of the reporter to make such transcript and furnish it to the clerk. His costs may be taxed in the case to abide the result *Page 75 of the appeal, as oll other costs of the defendant in criminal cases must abide the result.
It is the plain duty of respondent to require his court reporter to furnish to the clerk a transcript of his stenographic notes. This is substantially the ruling made in Paragraph II of the main opinion, but that paragraph does not fully express my views in the case.