This case is concerned with the narrow issue whether a court reporter's attendance charges are to be taxed as costs in a Municipal Court that does not *Page 120 have a court reporter where, prior to trial, a defendant (subsequently acquitted) requests a court reporter to take stenographic notes of the proceedings.
A complete transcript of the testimony may be the necessary (or at any rate the best) way to show claimed errors on appeal. This can only be accomplished if a court reporter is present during the trial. Moreover, without the transcript, the cost of preparation and the expense for counsel could prove to be a vain expenditure in case of conviction. For without the record an appeal may be futile.
Refusal to tax the costs of the court reporter to the loser forces a defendant to make the choice of foregoing his right to a complete transcript of the testimony for use on appeal or paying the cost of the court reporter even though he is ultimately acquitted.*
A rule imposing such options is fundamentally unfair and therefore unconstitutional because fairness is an essential element of due process under the Fourteenth Amendment of the United States Constitution. (Cf. Section 16, Article I, Constitution of Ohio, first paragraph, "due course of law".)
There is an additional vice in the refusal to tax the costs of the reporter's attendance as requested in this case. A successful criminal defendant in Common Pleas Court may have taxed as costs attendance fees of a court reporter by virtue of the statutes. See R. C. 2301.20 and 2301.21. These sections, read together with R. C. 1901.21 (A) and 1907.371, make the common pleas provision for court reporters applicable to Lakewood Municipal Court. The obligation thus imposed becomes that set out in R. C. 2301.20 and 2301.21, which provide in pertinent part:
R. C. 2301.20:
". . . if either party to the suit, or his attorney, requests the services of a shorthand reporter, the trial judge shall grant the request, . . . ." *Page 121
R. C. 2301.21:
"In every case reported as provided in section 2301.20 of the Revised Code, there shall be taxed for each day's service of the official or assistant shorthand reporters a fee . . ., to be collected as other costs in the case . . . ."
For both the constitutional and statutory reasons assigned, judgment is reversed and this cause is remanded to Lakewood Municipal Court with instructions to tax attendance fees as costs.
Judgment reversed.
DAY, C. J., KRENZLER, J., concur.
MANOS, J., dissents.
* The contention that a defendant should pay the court reporter because he pays his attorney does not have merit. An attorney, by tradition, is personal to the defendant, while a court reporter's services are normally a part of the judicial expense and taxed as costs.