Mattingly v. Nichols

California Supreme Court Jul 8, 1901 No. L.A. No. 1025.Published

Before: Haynes

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Holding. The court held that a shorthand reporter is not entitled to compensation from the county for transcribing testimony in a preliminary examination where the accused was discharged, as the statute does not require such transcription in those cases.

Issues

Whether a shorthand reporter is entitled to compensation for transcribing testimony at a preliminary examination when the defendant is discharged.
Whether the Penal Code requires the transcription of shorthand notes when a defendant is discharged by the magistrate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We think, however, that the code does not contemplate, much less require, the shorthand notes of the reporter to be transcribed, where the accused has been discharged.”

“neither the state nor the county can be charged with a liability, unless it is authorized by law.”

Synopsis

Mandamus to Auditor — Transcription of Reporter’s Notes—Preliminary Examination — Discharge of Defendant — Order of Justice. — The provision of the Penal Code for the transcription of the notes of a reporter, taken at a preliminary examination, is confined to the case where the defendant is “held to answer to the charge,” and mandamus'will not lie to compel the auditor to draw his warrant for such transcription, where the accused was discharged. The order of the examining magistrate, in such case, for the transcription, is unauthorized, and cannot make the state or county liable therefor.

Id. — Duty of Magistrate to Indorse Order of Discharge — “Depositions”—Transcription of Notes Unnecessary. — The duty imposed upon the magistrate to indorse the order of discharge upon the “ depositions ” does not indicate that the reporter’s notes must be transcribed; but the term “depositions” applies to the testimony taken when the complaint was first presented to the magistrate before, issuing the warrant, as well as to the testimony of witnesses taken upon the examination of the accused. Where the accused is discharged, the magistrate may properly indorse the order upon the former “ depositions,” without the necessity of any transcription of the reporter’s notes taken at the examination.

HAYNES, C.

Appellant, upon filing his complaint in the court below, obtained an alternative writ of mandate requiring respondent, as county auditor, to draw a warrant upon the county treasurer in his favor for the sum of $34.50, for services as shorthand reporter in a justice’s court upon the examination of a prisoner charged with grand larceny, or show cause why he should not do so. The defendant appeared and demurred to the complaint, the demurrer was sustained, judgment entered thereon for the defendant, and plaintiff appeals.

[333]

The complaint alleges that upon the demand of one Brogdon, who was being examined upon a charge of grand larceny, that the testimony should be reduced to writing, the plaintiff was ordered and appointed by the justice of the peace to report in shorthand the depositions, testimony, and proceedings at the preliminary examination of the party charged; that he took said proceedings in shorthand, and, in compliance with the order of the justice, afterwards transcribed the same in longhand; that the prisoner was discharged; and the proceedings so transcribed, and his shorthand notes, were duly filed with the clerk of the superior court.

Appellant’s demand was for one day’s service, $10; and for transcribing the testimony, $24.50. The controversy relates only to the item for transcribing the testimony.

Appellant’s contention is, that as section 871 of the Penal Code makes it the duty of the magistrate to indorse, in writing, his order of discharge upon the depositions taken, authenticated, and certified in the manner prescribed by section 869 of the Penal Code, and as section 883 of the Penal Code requires that the “depositions” so taken should be filed with the county clerk in all cases, whether the defendant is discharged or held to answer, it necessarily follows that the reporter’s shorthand notes should be transcribed, as otherwise the discharge could not be indorsed upon them.

This contention is, we think, erroneous. If it were essential that the discharge should be indorsed “ upon the depositions,” there are other depositions mentioned in the code upon which it may properly be indorsed. Section 811 of the Penal Code provides that when an information is laid before a magistrate, he must examine the informant or prosecutor, and any witnesses he may produce, “ and take their depositions in writing”; and section 812 of the Penal Code prescribes what “the deposition ” so taken must set forth. The term “ deposition ” is also given to the testimony of witnesses taken upon the examination of the accused, when required to be reduced to writing, whether written by the magistrate, or taken in shorthand. (Pen. Code, sec. 869.) And section 870 speaks of “depositions taken on the information or on the examination.”

Mattingly v. Nichols

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Synopsis

HAYNES, C.

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