I cannot agree with the majority opinion in this case, for the reason the facts stated lead me to believe that the plaintiff in error cannot perfect his appeal under the facts and surrounding circumstances in this case without he has a transcript of the testimony and the objections and exceptions taken during the trial.
Judgment in this case was rendered on November 19, 1932; defendant was granted time to make and serve a case-made; notices of appeal were served; and defendant endeavored to secure funds to pay for a transcript of the testimony and proceedings at the trial but was unable to do so, and filed a poverty affidavit asking the court to order a transcript made at the expense of the county. His application for the record to be furnished at the expense of the county and his application for an extension of time was contested by the state, and both were denied; application was then made to this court for this court to have a record furnished at the expense of the county and for an extension of time. The state contested the application and this court ordered defense counsel to prepare and submit a case-made. A verified affidavit in the nature of a petition was filed in which it was set out that the testimony was voluminous; that many objections and exceptions were taken; that the sufficiency of the evidence to sustain the judgment was challenged; that on account of the death of the court reporter which occurred on April 6, 1933, without having transcribed his notes, it was impossible for counsel to prepare a case-made which would preserve the testimony or a substantial synopsis of it or preserve the objection and exceptions and proceedings of the trial. *Page 380
The defendant was not guilty of any delay in trying to procure a transcript of the testimony, but acted diligently to have the record preserved. All of the proceedings were contested by the state, and the state insisted they could furnish sufficient record to enable the plaintiff in error to make up a transcript sufficient to preserve all the material testimony and all the exceptions and objections that were in the record.
Plaintiff in error insists that it is no fault of his that the record cannot be furnished; that the court reporter died prior to the time he was required to file his case in this court, and asks this court to reverse the case with directions.
The opinions of the courts of this state are not in harmony. Similar questions to the one involved in this case have been before this court many times. In Tegler v. State,3 Okla. Cr. 595, 107 P. 949, 139 Am. St. Rep. 976, this court held that where the judge who presided at the trial died after the completion of the trial, and before the case had been settled and signed, the defendant without fault on his part was deprived of his constitutional right to present a complete appeal to this court, and is thereby entitled to a new trial.
In Bailey v. United States, 3 Okla. Cr. 175, 104 P. 917, 25 L.R.A. (N.S.) 860, this court, in the first paragraph of the syllabus, said:
"Where, in a proceeding in error properly instituted, it appears that the record in the case has been lost or destroyed without possibility of substitution, through no fault of the appellant or his counsel, but solely because of the action of the court officials or some accident or act of Providence for which no one is responsible, and without which record the errors complained of cannot be considered, *Page 381 the Criminal Court of Appeals has the power to order a new trial of the cause."
In Elliott v. State, 5 Okla. Cr. 63, 113 P. 213, this court, in the first paragraph of the syllabus, said:
"When the record discloses that the appellant is unable to present a full and complete appeal in this court by reason of the loss of portions of the transcript by officials of the court below through no fault of his, the cause will be reversed."
Following the holdings of this court in the Tegler, Bailey and Elliott Cases, supra, and Gibbs v. State, 23 Okla. Cr. 247,214 P. 745, and Crittendon v. State, 44 Okla. Cr. 415,281 P. 315, I insist that it is apparent from the record presented in this case that the defendant has been deprived of his constitutional right without fault on his part to have his case reviewed on the errors assigned. In order that the defendant may not be deprived of his statutory rights, this case should be reversed and remanded to the district court of Pittsburg county, with directions to grant him a new trial.