OPINION
By the Court,
Taber, J.:
On February 23, 1943, in the Seventh judicial district court, White Pine County, appellant was convicted
of first degree murder, and later sentenced to death. His motion for a new trial was denied. On April 10 he served and filed notice of appeal from the judgment and from the order denying a new trial. On or about April 27 execution was suspended until the hearing and determination of the appeal.
On October 5 respondent noticed a motion in this court for an order dismissing the appeal and vacating the order suspending execution. On November 3 appellant moved this court for an order granting him leave to file a memorandum of errors and a bill of exceptions.
Respondent’s motion was based upon the ground of failure to prosecute the appeal, no progress having been made in that respect since said 27th day of April. At the hearing of this motion on November 2 respondent showed that appellant’s attorney, Mr. C. A. Eddy, had received, on or about May 1, a copy of the transcript of the proceedings and evidence had and taken at the trial; that on September 1 the district court made an order giving appellant thirty days in which to file a bill of exceptions and memorandum of errors; that no memorandum of errors has been filed nor bill of exceptions filed or settled; and that on said 1st day of September Mr. Eddy informed the trial court that attorney W. E. Baldy, of Carson City, Nevada, was associated with him in this case.
Mr. Eddy testified in part at said hearing that he was appointed by the district court to defend appellant, who was without funds; that he acted as his attorney at the trial, for which he was paid, by order of court, one hundred dollars (the maximum amount allowed by the statute) ; that for the last three years he has been afflicted with an illness which affects not only certain digestive organs, but his eyes as well; that he had three or four attacks of this illness during the trial, and has had four or five since May; that the only office help he was able to procure since being appointed to defend this case was an inexperienced stenographer, who after three months of training married and quit
her employment; that except as aforesaid he has been without help and has done everything he could without funds; that since the trial he has received only $50, all of which he has used for said stenographer, telephoning, and his trip to Carson City to resist this motion; that when his attacks of illness come on, he is unable to attend to business for two or three days; that when he first applied for a copy of the transcript he was refused because he had no funds; that he asked the county commissioners to furnish money to pay for copies of the transcript, one for himself, one for the attorney-general, and one for each of the supreme court justices; that the chairman told him that they would give him nothing — if they allowed anything it would be to the district attorney; that thereafter he tried again to get a copy of the transcript, but without avail; that shortly after the return of the district judge to Ely he made an order, about September 1, that a copy be furnished defense counsel; that district judge Watson’s statement that witness had had a loan of a copy of the transcript long before September 1 is true, but it was an uncertified copy which is now in Mr. Baldy’s possession; that it is true that the transcript was filed with the district court clerk some time prior to September 1; that during the month of September witness had two attacks of illness which delayed him probably a period of ten days; that he was unable to hire any help; that he had come to Carson City to resist this motion without any compensation for his services.
On cross-examination Mr. Eddy testified that he had applied to the district judge for an additional $100, but the application was not granted because that judge was of opinion that he had no authority to do so; that in September witness asked leave to withdraw from the case so he could go to Denver and consult a specialist about his eyes, but this request was later withdrawn, witness stating to the trial judge that he would stay with the case and do the best he could; that at this time Judge Watson told him that Mr. Baldy had asked for
additional time, and also told him that if he insisted on withdrawing from the ease he would be permitted to do so; that he felt that if he insisted on withdrawing, he would probably be in contempt of court; that he had never asked for any stipulation for additional time within which to prepare and file a bill of exceptions; that from April 27 until September 1 no progress was made for perfecting the appeal; that witness made no appearance in court about October 1, and no bill of exceptions was submitted to the court for settlement until witness offered a proposed bill ■ on October 16; that the district judge in effect denied the offer and suggested that the matter was now in the hands of the supreme court; that the bill was not accepted at that time; that the official reporter may have filed the transcript with the clerk about May 1, but she wanted $40 for a copy and witness didn’t have the money to put up out of his own pocket; that it wasn’t until after he had appeared before the county commissioners, thirty days or more after the transcript was completed, that the reporter lent him an unsigned copy of the transcript; that he did not, at the time of offering the proposed bill of exceptions to the district judge on October 16, represent to him that it was because of his illness that the bill had not been offered; that Judge Watson knows witness’ physical condition, as it was two years ago that he had his first attack in court and Judge Watson sent him home, where he was put under a doctor’s care; that the district judge did not give witness an order for a transcript until he returned to Ely from Carson City, where he had been holding court for Judge Guild.
In response to questions from members of the court, witness testified that he applied to Judge Watson before September 1 for an order for a transcript, but the judge said at that time that he couldn’t do it; that the official reporter held off until September 1, when the court made the order that the county pay the bill; that the reason for not making application about October 1 for
a further extension of time was witness’s physical condition, and the further fact that Judge Watson was away about that time and didn’t come back until a little later; that witness has never made any application to file the transcript out of time, but now moves the court for an order permitting him to do so.
Mr. Baldy became associated with Mr. Eddy about one week before execution was stayed. He presented the application for a stay and for a certificate of probable cause, which was granted April 27. He states that he was employed by Mr. Plunkett; that he agreed with the latter that if he would pay him $25 for the time being, he would appear and participate at the time of the argument in the supreme court; that he knows Mr. Eddy has been handicapped at different times by his illness.
Mr. Eddy’s office is at Ely, where the trial was held. Mr. Baldy’s office is at Carson City, where this court sits. This distance between the two cities exceeds three hundred miles.
Section 11061 N. C.
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OPINION
By the Court,
Taber, J.:
On February 23, 1943, in the Seventh judicial district court, White Pine County, appellant was convicted
of first degree murder, and later sentenced to death. His motion for a new trial was denied. On April 10 he served and filed notice of appeal from the judgment and from the order denying a new trial. On or about April 27 execution was suspended until the hearing and determination of the appeal.
On October 5 respondent noticed a motion in this court for an order dismissing the appeal and vacating the order suspending execution. On November 3 appellant moved this court for an order granting him leave to file a memorandum of errors and a bill of exceptions.
Respondent’s motion was based upon the ground of failure to prosecute the appeal, no progress having been made in that respect since said 27th day of April. At the hearing of this motion on November 2 respondent showed that appellant’s attorney, Mr. C. A. Eddy, had received, on or about May 1, a copy of the transcript of the proceedings and evidence had and taken at the trial; that on September 1 the district court made an order giving appellant thirty days in which to file a bill of exceptions and memorandum of errors; that no memorandum of errors has been filed nor bill of exceptions filed or settled; and that on said 1st day of September Mr. Eddy informed the trial court that attorney W. E. Baldy, of Carson City, Nevada, was associated with him in this case.
Mr. Eddy testified in part at said hearing that he was appointed by the district court to defend appellant, who was without funds; that he acted as his attorney at the trial, for which he was paid, by order of court, one hundred dollars (the maximum amount allowed by the statute) ; that for the last three years he has been afflicted with an illness which affects not only certain digestive organs, but his eyes as well; that he had three or four attacks of this illness during the trial, and has had four or five since May; that the only office help he was able to procure since being appointed to defend this case was an inexperienced stenographer, who after three months of training married and quit
her employment; that except as aforesaid he has been without help and has done everything he could without funds; that since the trial he has received only $50, all of which he has used for said stenographer, telephoning, and his trip to Carson City to resist this motion; that when his attacks of illness come on, he is unable to attend to business for two or three days; that when he first applied for a copy of the transcript he was refused because he had no funds; that he asked the county commissioners to furnish money to pay for copies of the transcript, one for himself, one for the attorney-general, and one for each of the supreme court justices; that the chairman told him that they would give him nothing — if they allowed anything it would be to the district attorney; that thereafter he tried again to get a copy of the transcript, but without avail; that shortly after the return of the district judge to Ely he made an order, about September 1, that a copy be furnished defense counsel; that district judge Watson’s statement that witness had had a loan of a copy of the transcript long before September 1 is true, but it was an uncertified copy which is now in Mr. Baldy’s possession; that it is true that the transcript was filed with the district court clerk some time prior to September 1; that during the month of September witness had two attacks of illness which delayed him probably a period of ten days; that he was unable to hire any help; that he had come to Carson City to resist this motion without any compensation for his services.
On cross-examination Mr. Eddy testified that he had applied to the district judge for an additional $100, but the application was not granted because that judge was of opinion that he had no authority to do so; that in September witness asked leave to withdraw from the case so he could go to Denver and consult a specialist about his eyes, but this request was later withdrawn, witness stating to the trial judge that he would stay with the case and do the best he could; that at this time Judge Watson told him that Mr. Baldy had asked for
additional time, and also told him that if he insisted on withdrawing from the ease he would be permitted to do so; that he felt that if he insisted on withdrawing, he would probably be in contempt of court; that he had never asked for any stipulation for additional time within which to prepare and file a bill of exceptions; that from April 27 until September 1 no progress was made for perfecting the appeal; that witness made no appearance in court about October 1, and no bill of exceptions was submitted to the court for settlement until witness offered a proposed bill ■ on October 16; that the district judge in effect denied the offer and suggested that the matter was now in the hands of the supreme court; that the bill was not accepted at that time; that the official reporter may have filed the transcript with the clerk about May 1, but she wanted $40 for a copy and witness didn’t have the money to put up out of his own pocket; that it wasn’t until after he had appeared before the county commissioners, thirty days or more after the transcript was completed, that the reporter lent him an unsigned copy of the transcript; that he did not, at the time of offering the proposed bill of exceptions to the district judge on October 16, represent to him that it was because of his illness that the bill had not been offered; that Judge Watson knows witness’ physical condition, as it was two years ago that he had his first attack in court and Judge Watson sent him home, where he was put under a doctor’s care; that the district judge did not give witness an order for a transcript until he returned to Ely from Carson City, where he had been holding court for Judge Guild.
In response to questions from members of the court, witness testified that he applied to Judge Watson before September 1 for an order for a transcript, but the judge said at that time that he couldn’t do it; that the official reporter held off until September 1, when the court made the order that the county pay the bill; that the reason for not making application about October 1 for
a further extension of time was witness’s physical condition, and the further fact that Judge Watson was away about that time and didn’t come back until a little later; that witness has never made any application to file the transcript out of time, but now moves the court for an order permitting him to do so.
Mr. Baldy became associated with Mr. Eddy about one week before execution was stayed. He presented the application for a stay and for a certificate of probable cause, which was granted April 27. He states that he was employed by Mr. Plunkett; that he agreed with the latter that if he would pay him $25 for the time being, he would appear and participate at the time of the argument in the supreme court; that he knows Mr. Eddy has been handicapped at different times by his illness.
Mr. Eddy’s office is at Ely, where the trial was held. Mr. Baldy’s office is at Carson City, where this court sits. This distance between the two cities exceeds three hundred miles.
Section 11061 N. C. L. 1929 provides in part that when, in a district court criminal action, judgment upon a conviction is rendered, the clerk shall enter the same in the minutes and shall, within five days, annex together and file certain specified papers, which shall constitute the record of the action. Subdivision 9 of said section provides that the bill of exceptions, if any, when settled, shall be attached to such papers and become a part of the record.
Section 11081 N. C. L. 1929 relates to the settlement and certification of bills of exceptions in criminal cases. It provides, among other things, that a proposed bill shall be filed and served within ten days after the entry of the judgment. It also contains the following provision: “The time in this section mentioned for the performance of any act, upon stipulation or good cause shown, may be shortened or extended.”
When an appeal is taken in such an action, the clerk
with whom the notice of appeal is filed must, within ten days thereafter, transmit to the clerk of the supreme court the notice of appeal and the record in the action. Sec. 11093 N. C. L. 1929.
Section 11094 N. C. L. 1929 reads : “If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on a day in term, on motion of the respondent, upon five days’ notice, with copies of the papers upon which the motion is founded, unless the irregularity can be cured by amendment and is so cured, order the same to be dismissed.”
This court may also, upon like motion, dismiss the appeal, if the return be not made as provided in said sec. 11093, unless for good cause it shall enlarge the time for that purpose.
It was held in State v. Salge, 1 Nev. 455, that in criminal cases the time within which the bill of exceptions is to be signed by the judge is merely directory. And in State v. Baker, 8 Nev. 141, it, was held that the section then in effect requiring bills of exceptions in criminal cases to be settled, signed, and filed within ten days after trial, unless further time be granted, was directory.
Respondent contends that its motion should be granted because appellant has not complied with the statutes relating to the perfecting of appeals in criminal cases; “in brief, that there has been unreasonable delay and laches on the part of the defendant and appellant in lodging his appeal in this court.” Appellant’s contention is that the motion should be denied “under the extenuating circumstances.”
Where there is reasonable excuse for delay or failure in presenting a bill of exceptions for settlement, the court should be liberal in securing to the accused the advantages given him by the law. State v. Baker, supra, 8 Nev. at page 145. The showing made in behalf of appellant in the instant case is not entirely satisfactory, and certainly counsel for the state are not to be
criticised for making the motion to dismiss; on the contrary, they have shown at least as much patience as could be reasonably expected of them. The trial court and its judge also appear to have manifested an attitude of fairness and forbearance. On the other hand, we cannot be unmindful of the fact that appellant is under sentence of death, and there is no suggestion that any of the delay is attributable to him personally. We have also to consider appellant’s lack of funds, Mr. Eddy’s illness, his inability to obtain stenographic help, and the fact that Mr. Baldy would naturally look to Mr. Eddy to take care of such matters as required attention at Ely. The court feels constrained, in view of all the circumstances, to afford appellant the opportunity to have a bill of exceptions settled, signed, and filed and made a part of the record on appeal.
Respondent’s motion is denied, and the lower court is directed to allow appellant a reasonably short time within which to file with the clerk of that court a proposed bill of exceptions. When so filed, the district court is further directed, at its earliest convenience, to settle the bill in accordance with the provisions of sec. 11081 N. C. L. 1929, and counsel for appellant are directed to collaborate diligently with said court and with counsel for the state in expediting such settlement, so that the bill of exceptions may be attached to the other papers in the record of the action and filed in this court as a part of the record on appeal. In view of the fact that there has already been too much delay, it is ordered that instead of the thirty days’ period allowed by rule II of this court for filing the transcript of the record on appeal, such transcript shall, in this case, be filed within fifteen days after the bill of exceptions has been settled. In the event that withdrawal of any papers in this case from the files of the clerk of this court will facilitate the settlement of said bill of exceptions or the perfecting of the appeal, application may be made to the court or one of its justices for an order permitting the withdrawal of such papers.
May 9, 1944.
149 P. (2d) 101.