State v. Jensen

296 P.2d 618, 289 P.2d 687, 209 Or. 239

• Court: Oregon Supreme Court
• Decided: January 16, 1957
• Status: Published

Opinions

TOOZE, J.

This matter is now before us upon the motion of the defendant, James Norman Jensen, for an order directing Jackson county, Oregon, to pay the costs of printing defendant’s briefs on appeal.

On October 15, 1954, defendant was convicted in the circuit court of the state of Oregon for Jackson county of the crime of murder in the first degree, and on October 19, 1954, he was sentenced by the court to the death penalty. On December 10,1954, defendant duly served and filed his notice of appeal to this court from the judgment of conviction, all pursuant to the provisions of ch 138 of ORS. Long prior to the effective date of the statute hereafter discussed, the transcript on appeal, together with defendant’s bill of exceptions, had been filed with the clerk of the Supreme Court, but defendant’s opening brief had not been so filed.

Defendant now moves this court for an order directing the county of Jackson to pay the costs of printing his briefs on this appeal, and in support of his motion relies upon the provisions of ch 662, Oregon Laws 1955.

Chapter 662, Oregon Laws 1955, which was approved by the governor on May 24, 1955, and which became effective late in August, 1955, provides in part as follows:

“Section2. (1) When any judgment of death is rendered and no appeal to the Supreme Court has been taken, an appeal to the Supreme Court is automatically taken by the defendant without any action by him or his counsel 65 days after the filing of the judgment.

“ (2) When an automatic appeal to the Supreme Court is taken as provided in subsection (1) of this section, the clerk of the court in which the judgment was rendered shall:

“(a) Within 70 days after the filing of the judgment, file with the Clerk of the Supreme Court the judgment roll and the transcript consisting of a copy of the judgment and such other papers as may be required by the Supreme Court.

“(b) Within 90 days after the filing of the judgment, transmit the transcript of testimony, depositions, exhibits and other papers containing the evidence heard or offered to the Clerk of the Supreme Court.

“Section3. Within five days after the transcript has been filed as required by paragraph (a) of subsection (2) of section 2 of this Act:

“ (1) The Supreme Court shall appoint counsel to represent the defendant if he is not already represented by counsel.

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“Section 5. When an automatic appeal to the Supreme Court from a judgment of death is taken as provided in section 2 of this Act and there is a showing to the Supreme Court that the defendant is without funds:

“ (1) The county in which the judgment of death was entered shall pay the expense of preparing the transcript of testimony and printing the abstract of record and briefs of the defendant and costs assessed by the Supreme Court.

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“(3) Counsel appointed pursuant to subsection (1) of section 3 of this Act, shall be granted reasonable attorney’s fees in an amount fixed and approved by the Supreme Court. Such fees shall be paid by the county in which the judgment of death was entered.” (Italics ours.)

Defendant’s motion is accompanied by an affidavit showing with sufficient certainty that he is without funds with which to pay the costs of printing the briefs. He is represented by court-appointed counsel.

This court has no jurisdiction or power, express or inherent, to order the county to pay the costs of printing defendant’s briefs, unless such authority has been conferred upon it by the foregoing statute. The statute expressly grants us that authority in criminal cases where a judgment of death has been rendered and an automatic appeal as defined in the law has been taken to this court. But it is evident that it is only in cases involving an automatic appeal that the statute is applicable. The jurisdiction vested in us by the legislature is thus expressly limited by the terms of the statute. The instant appeal is not an automatic appeal under the statute; it is an appeal taken directly by the defendant. It is manifest that had the legislature intended to vest that authority in us in all appeals in criminal cases involving the death penalty, those pending as well as those arising in the future, it would have expressly so provided. It would not have singled out automatic appeals as described for the exercise of such authority. It might be well to point out that until the Law of 1955 was enacted, there was no such procedure in this state as an automatic appeal. The legislature had the right to cut its cloth according to its own measurements, and we are bound by the plain terms of its enactment.

Defendant suggests that we have the inherent power to allow his motion. It is unnecessary for us to discuss such inherent power as we might possess as an appellate court, constitutionally created, because it is clear that the relief prayed for in the instant motion is not such as could possibly be within our inherent power to allow.

The motion is denied.