It is undisputed that the accused, Jake Bird, who was charged with, and convicted of, *Page 791 the crime of murder in the first degree, and was sentenced to be hanged, is entitled to appeal to this court from the judgment of conviction and sentence. Our state constitution guarantees to him that right, the statutes of this state recognize it, and former decisions of this court uphold it. We so declared in State exrel. Bird v. Superior Court, ante p. 110, 190 P.2d 762.
The only question now before us is whether the defendant Bird, who has heretofore taken an appeal to this court, is entitled to have a transcript of the testimony and other proceedings in the case furnished to him by order of the superior court wherein he was tried and paid for out of Pierce county treasury. The majority hold that his petition seeking such assistance should be denied; I am of the opinion that, from what has been made to appear in this court, the petition should be granted. The preparation of the transcript here sought will cost about four hundred dollars. Bird is an indigent person, wholly without funds to pay for such document.
The statute relating to the subject is Rem. Supp. 1943, § 42-5 [P.P.C. § 108-9], the material portion of which reads as follows:
"When shorthand notes have been taken in any cause as in this act provided, if the court, or either party to the suit or action, or his attorney, request a transcript of the notes into longhand, the official reporter shall make, or cause to be made, with reasonable diligence, full and accurate typewritten transcript of the testimony and other proceedings, which shall, when certified to as hereinafter provided, be filed with the Clerk of the Court where such trial is had for the use of the court or parties to the action. . . . Provided, That when the defendant in any criminal case shall present to the judge presiding satisfactory proof by affidavit or otherwise that he is unable to pay for such transcript, the judge presiding, if in his opinion justice will thereby be promoted, may order said transcript to be made by the official reporter, which transcript fee therefor shall be paid out of the county treasury as other expenses of the court are paid."
It is true, as stated in the majority opinion, that the statute above quoted "vests the matter in the discretion of the *Page 792 trial judge," that is to say, it is for the trial judge, in the first instance, to consider and determine whether justice will be promoted by directing the preparation of such transcript at the expense of the county. However, it is equally true that the decision of the trial court may be reviewed by this court, to determine whether, under all the facts and circumstances shown to exist, the trial court properly exercised its discretion, or whether, on the contrary, it abused its discretion. This principle of law has been declared by this court not only in frequent other cases, but also, as a matter of fact, in the very case in which this defendant is presently involved. In State exrel. Bird v. Superior Court, supra, where this same request was made, but was denied for specific reasons therein stated, we nevertheless said:
"Should the judge of department No. 3 of the superior court for Pierce county refuse the application for a transcript of the reporter's shorthand notes of the testimony and other proceedings taken in the case of State of Washington v. Jake Bird, his ruling might again be brought to this court for review before a statement of facts could be prepared, certified, and filed and appellant's opening brief prepared and filed."
Now, whether the trial court in refusing defendant's request with respect to a transcript of the testimony and other proceedings abused its discretion, is a question which we as a reviewing court cannot possibly decide unless in some way there is brought to us the record upon which the trial court based its decision. Without such record, there is nothing for us to review. As stated in the majority opinion, Judge Rosellini had the benefit of listening to the "transcriber," covering the proceedings of the trial had before Judge Hodge, now deceased, and based his judgment and conclusion upon the information derived from the transcriber. We, on the other hand, have absolutely nothing on which to base our judgment or a finding as to whether or not Judge Rosellini abused his discretion in denying defendant's request.
It may well be that, as stated by Judge Rosellini, "justice would not be promoted by furnishing petitioner Bird with *Page 793 a free statement of facts," and that "Bird had been accorded a fair and impartial trial." But those are the very questions which we will be required to decide upon, or in connection with, the appeal when the record is brought to us. Whether or not a convicted defendant has had a fair and impartial trial, is of the very essence of every criminal appeal; and whether or not justice would be promoted in a given instance, is likewise a question within the province of this court, as a reviewing tribunal, to determine in connection with the appeal.
If, as declared in State ex rel. Bird v. Superior Court,supra, the ruling of the judge of the superior court on this very question may be brought to this court for review, how can a "review" be had when the record to be reviewed is not before us? And of what value to anyone is a constitutional right of appeal if the questions to be determined on such appeal are dependent upon a record which, though capable of being supplied, cannot be produced or obtained by the defendant because he is destitute? It is apparent that in this case the appeal will be futile without the record upon which the appeal is founded.
I am of the opinion that in a capital case, where the defendant is an indigent person, unable to pay for the transcript of the testimony and other proceedings in the case, it is an abuse of discretion to refuse to have such transcript supplied to him at the expense of the county, for otherwise the constitutional right of appeal is worthless. I am also of the opinion that, upon the oral argument of this matter, a sufficient showing was made to warrant this court in granting the petition, in order that we may properly and intelligently dispose of the appeal. I therefore dissent. However, since the majority opinion prevails, I agree that the remittitur shall go down immediately.
BEALS and ROBINSON, JJ., concur with STEINERT, J. *Page 794