The reasons advanced in the majority opinion for disregard of the rules respecting appeals in criminal cases are not more cogent than the excuses of the majority for flouting those rules in State v. Brown, 26 Wash. 2d 857, 176 P.2d 293.
This court again holds that our solemn pronouncement in Statev. Currie, 200 Wash. 699, 94 P.2d 754, that even in a criminal case we will not except a particular individual from the operation of a rule or excuse its violation in a particular instance, is meaningless, and that our adjudications are in the same class as a restricted railroad ticket, good for this day and train only.
"Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy." Dissenting opinion of Justice Roberts in Mahnich v. Southern S.S. Co.,321 U.S. 96, 64 S. Ct. 455.
We refused to relax the rules in State v. Schafer, 154 Wash. 322,282 P. 55, and State v. Hall, 185 Wash. 685,56 P.2d 715, and exacted of those defendants the extreme penalty.
We say, in effect, that the more atrocious the crime, the more lax will be the rules of practice and procedure in favor of the criminal. The murderer has every reason now to believe that the date of his incarceration in the state penitentiary, or the date of his execution for a crime committed, will be extended indefinitely. Shall we further relax the rule in favor of the rapist, the burglar, the embezzler, the highway robber, the kidnapper, and the arsonist?
Doubtless the next step will be to have graduated rules with respect to each criminal. In State v. Brown, supra, the defendants are charged with having committed the murder of which they stand convicted, September 29, 1945. March 22, 1946, the appeal in that case was dismissed because of failure of the defendants to comply with rules which we held in prior cases were jurisdictional. April 26, 1946, we granted petition of defendants for a rehearing and motion to vacate the order of dismissal of the appeal. In June, 1946, motion for vacation of the order of dismissal *Page 122 was argued to the court En Banc. On January 3, 1947, (State v.Brown, 26 Wash. 2d 857, 176 P.2d 293), a majority opinion of this court to vacate the order dismissing the appeal was filed. June 9, 1947, the appeal on the merits was argued to Department One of this court and the cause assigned for opinion. Six months later, the judge to whom the cause was assigned released his opinion. One of the judges of Department One dissented, whereupon the cause was set for hearing En Banc, March 10, 1948. When that cause is heard, it will be again assigned for opinion. In other words, the defendants in State v. Brown, supra, will, probably, three years after commission of the crime of murder, not yet be required to pay the penalty for their crime.
The criticism by counsel for the state in the case at bar of the observation in the majority opinion in State v. Brown,supra, that the language used in the rules respecting appeals in criminal cases is not applicable to cases in which the death penalty has been imposed, is merited. I agree that the language ignores the procedure established to promulgate rules to expedite the speedy determination of criminal appeals. We stated in Statev. Currie, supra, that it might well be doubted whether there is any other statute or rule in force in this state which received, prior to its enactment, a more thorough and more expert study, than the rule of procedure under discussion.
I further concur in the criticism of counsel for the state in the case at bar, that there is no sound basis in reason nor in authority for the result in State v. Brown, supra.
Nor do I agree with the majority opinion, which directs the superior court for Pierce county to again pass upon Bird's application for a transcript to be furnished at the expense of Pierce county.
In State ex rel. Marr v. Superior Court, 163 Wash. 459,1 P.2d 331, we denied to a defendant a transcript on appeal. We reviewed the prior cases on the question, which is the same as that involved in the case at bar. We there held that the constitutional provision under which a person convicted of crime is given the right to appeal does not include *Page 123 the right to require the county to defray the cost of a transcript on appeal in the case of an impecunious defendant. We further held that the statute (Rem. Rev. Stat., § 42-5 [P.P.C. § 108-9]), which authorizes the trial judge, upon satisfactory proof of inability to pay, to order a transcript if, in his opinion, justice will thereby be promoted, vests the matter in the discretion of the trial judge. The only statutory authority pertaining to costs on appeal, so far as indigent defendants are concerned, will be found in Rem. Rev. Stat., § 42-5, as amended by the Laws of 1943, chapter 69, § 4, p. 129, which was interpreted by this court in State ex rel. Marr v. SuperiorCourt, supra.
I repeat the statement made in my dissenting opinion in Statev. Brown, supra, that there is no authority on which this court may permit the filing of appeal in forma pauperis. Rem. Rev. Stat., § 1729 [P.P.C. § 5-37], which is cited as authority for preparation, certification, and filing of record in criminal appeals prosecuted in forma pauperis at the expense of the county, was repealed by the Laws of 1943, chapter 206, § 1, p. 639.
The trial judge is vested with almost absolute discretion in the matter of ordering a transcript of the testimony to be made at county expense in criminal cases. If the trial court in the case at bar denies the application of the defendant for a transcript to be furnished at the expense of Pierce county and the defendant appeals therefrom, may we say that the trial court has abused its discretion? Will our determination of that question be dependent upon whether the record discloses that the appeal is meritorious? How could we determine that question without the record? Bird has been granted the right to appeal. That appeal will be fruitless in the absence of a record. We will then be compelled to say that the fact that Bird has been granted the right of appeal demands preparation of a transcript at the expense of Pierce county, and that the mere denial by the trial court of Bird's application for the transcript, to be furnished at the expense of Pierce county, constitutes an abuse of discretion. *Page 124
I incorporate by reference in this dissenting opinion, my dissenting opinion in State v. Brown, supra.
Bird was entitled to a fair trial. He had a fair trial. The orderly administration of justice demands that he be required to conform to the rules the same as any other accused. The people are entitled to expeditious administration of justice in criminal cases.
The petition of Bird should be denied.
SIMPSON, J., concurs with MILLARD, J.