People v. Smith

I concur in the conclusion that, as a matter of right upon an appeal from a judgment of conviction, the defendant is entitled to a reporter’s transcript at the expense of the state. However, I disagree with the classification of In re Paiva, 31 Cal.2d 503 , as “a criminal case.”

Ten years after he was convicted, Paiva commenced a proceeding for relief from the judgment by a writ of error coram, nolis. The application made by him for a transcript of the evidence offered and received upon the issue of his right to such a writ was made upon the ground that, without it, he could not adequately present his appeal from an adverse order. By long usage, an application for a writ of error coram, nolis has been regarded as civil in nature and, in my opinion, there is no sound basis for placing it in the category of a criminal action.

*454 For the reasons which I stated in the Paiva case ( 31 Cal.2d at p. 511 ), I do not consider that decision to be an authority which should control the decision upon the present application for a transcript. Obviously one who is appealing from a judgment of conviction is in an entirely different position from a petitioner who is seeking to set aside a…

This is an application for an order to direct the court reporter to prepare transcripts in the trial proceedings. The question is whether under the law a defendant appealing from a judgment of conviction is entitled to the reporter’s transcript at the expense of the state.

On November 12, 1948, in the Superior Court in Marin County, the defendant was convicted of a felony (violation of section 4573.5 of the Penal Code, unauthorized bringing into a state prison any drug including benzedrine for the use of prisoners). He was sentenced and placed on probation for *450 five years, the first year to he spent in the county jail. He appealed from the judgment of conviction and from an order denying his motion for a new trial. With his notice of appeal he requested, as an addition to the clerk’s record, a transcript of the proceedings on motions and all written instructions; and, as an addition to the reporter’s transcript, all instructions which could not be copied by the clerk, the opening and closing arguments of the district attorney, and the exhibits. (Rules on Appeal, rule 33(b), 22 Cal.2d 1 , 23.) In the request he stated that on the appeal he relied on errors in the giving of…