Amicus Curiae Brief — Mayer v. Chicago

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Sven et an SY

pesarcon unseen aeies sheet

TABLE OF CONTENTS

_ Pace

Interest of the State’s Morey of Cook County, Filing

As Amicus Curiae ..... 020. ccc ccc cece wees 2

Summary of Argument....... rere Sues au ee cup aes 3

Argument:

I. Since the petitions made no effort to utilize any

other available means to afford him appellate

review, he is now estopped from contending

that the failure to provide him a free tran-

script violated his constitutional rights. ...... 6

II. The decision in Williazns v. Oklahoma City’

does not require the granting of a free tran-

script in the instant case.’.................. 9

III. A review of Supreme Court decisions in areas

related to the question of free transcripts for

indigent defendants indicates a clear intent to

limit the granting of free transcripts only to

defendants who have received jail sentences... 12.

Conclusion .............. woe qapesutcduueeen succes 26

yo 0) 602) 110, Qa ea ee ere to oe we. 27

TABLE OF AUTHORITIES

CASES:

Baldwin v. New York, 399 U.S. 66 (1970) ......... ... 14

Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534.(Ark.

| Ly pe aa eter ee ea vee 185

Coppege v. United States, 369 U.S. 438 (1962) ........ 22

”

“Vie |

De Joseph v. Connecticut, 3 Conn. Cir. 624, 222 A. 2d

752 (Conn. 1966) cert. denied, 385 U.S. 982 (1966).. 16

Douglas v. California, 372 U.S. 353 (1963) ....15, 24, 26

Draper v. Washington, 372 U.S. 487 (1963)......... 7, 8

' Duncan v. Louisiana, 391 U.S. 145 (1968) .... 13, 14, 15, 22

_ Eskridge v. Washington Board of Prison Terms and

Paroles, 357 U.S. 214 (1958). .......0.020.00 cece cns 6

Frank v. United States, 395 U.S. 147 (1969) .... 22, 23 ©

Gideon v. Wainwright, 372 U.S. 335 (1963). .4, 14, 15, 24, 25

Griffin v. Illinois, 351 U.S. 12 (1956) . .3, 6, 8, 12,.15, 25, 26

Harvey v. State of Mississippi, 340 F. 2d 263 (5th Cir. —

1965) soe hee on heen ers eye eens eewaneees oes 10

Johnson v. United States, 352 U.S. 565 (1957) ........ 6

- Klopfer v. North Carolina, 386 U.S. 213 (1967)...... . 21

McDonald v. Moore, 353 F. 2d 106 (5th Cir. 1965)..... 16

Norvell v. Illinois, 373 U. S. 420 (1963) -gengeeee-Sees 25

People v. Dupree, 42 Ill. 2d 249, 246 NE 2d 281, (Til.,

1969) cert. denied, 396 U.S. 1047 (1970) ...... ... 16; 17

People v. Letterio, 16 N.Y. 2d 307, 213 NE 2d 670

(N.Y., 1965) ....... Gee eessieueeressereees 18, 19, 25

People v. Mallory, 378 Mich. 538, 147 NW 2d 66 (Mich., °

TOG) exe ees eee teary ss oredr seers hs ceess genase 16

Singer v. United States, 380 U.S. 24 (1965) Meeeeeaess 13

Smith v. Bennett, 365 U.S. 708 (1961) .............. «6

Spencer v. Texas, 385 U.S. 554 (1967) ............... 25

State v. Bennett, 266 N.C. 755, 147 7 E. 2d 237 (N. C.,

T9GG) cease oeesed ieekeheecausseanientcaesecseus 16

Tate v. Short, 401 US. 395 (1971) ...0...:... wees ee » 23

iij.

Willaims. Oklahoma City, 395 U.S..458 . *

60.) ae ee oa aaes 3, 4, 8, 9, 10, 11, 22

Winters v. Beck, 239 Ark. 1093, 397 S.W. 2d 364 (Ark.,

1965), cert. denied, 385 U.S. 907 (1966) .......... 16

CONSTITUTIONAL PROVISIONS

. Pace

United States Constitution,

Amendment 6 ............ eeeceteaseawenses 13, 15, 21

Amendment 14 .................000. 10, 13, 15, 21, 26

‘STATUTORY PROVISIONS AND RULES OF COURT

Illinois Supreme Court Rules

(Chap. 110A, Ill. Rev. Stat.)

Rule 323 (ce) .......... ee peweeeeeeeaeeus 3, 7, 8, 10, 11

Rule 320 (d) cen as teen tenses isiesanses --3, 7, 8, 10,11

- Rule 603 (as ‘amended J uly 1, 1971) Vinee este hens 21

Municipal Code of Chicago, Illinois | |

Ch. 11, §11-33 ........ ee ne we cgaedtas 11

Chi: 193; S.10G) ecntcyetaeeesateres edateweaadeues -11

craven Statutes Annotated, Title 22, § 1059 (1958) .. 10

iv.

MISCELLANEOUS

- PaGE

Annual Report to the Supreme Court, prepared by the

Administrative Office of the Illinois Courts. ...... 18, 19

The Indigent Defendants’ Right to Counsel In Misde-

meanor Cases. 17 S.W. L.J. 593 (1965) ............ 18

Rules of Procedure For the Trial of Minor Offenses

Befcre United States Magistrates. 8 Cr. L. 3901

(January 27, 1971). ....... 0... cee ee eee eee 5, 14, 17

Schaefer, Federalism and State Criminal Procedure .

70 Harv. L. Rev. 1 (1956). .. 0.0.2.0... 00. 000.. t20e. 28

Silverstein, Defense of the Poor in Criminal Cases in

American State Courts, Vol. 1 (1965).............. 19

Statistical Report: Cases, Fees and Costs, 1967- 70,

Prepared by the Office of Matthew Danaher, Clerk of

the Circuit Court of Cook County, Illinois. ...... 18

IN THE

Supreme Court of the United States

- Ocroser Term, 1970 |

No. 6061 | -

JACK L. MAYER, ~

, Appellant,

| VS.

THE CITY OF CHICAGO,

a Appellee.

APPEAL FROM THE SUPREME COURT OF ILLINOIS

BRIEF OF STATE’S ATTORNEY OF

COOK COUNTY, ILLINOIS

AMCUS CURIAE

¥

va INTEREST OF THE STATE’S ATTORNEY

OF COOK COUNTY, ILLINOIS =~

-. FILING IN AMICUS CURIAE

The Office of Edward YNanrahan, State’s Attorney

of Cook County, Illinois 1s submitting the instant amicus

curiae brief pursuant to the written consent of both

parties to this cause Said brief has been prepared and

submitted for the following reasons. ,

aitioner is

r If this HonorabJe Court requires that the

entitled to a free transcript, the expense of providing

said transcript might have to be undertaken by the Cir-

euit Court of Cook Coynty, whom the Office of the State’s

Attorney of Cook Coufity represents. _ ®

Furthermore, there are eight. misdemeanors included

under the provisions of the Illinois Criminal Code (Il.

Rev. Stats., Chap. 38 (1969) which provide*a fine as

the only possible penalty (See Appendix). Since the in-

stant cause will obviously affect the question of free

transcripts for defendaiits convicted .of said charges, the

State’s Attorney of Cook County, entrusted with the re-

sponsibility of prosecuting violations of the Illinois Crim-

inal Code within Cook County, wishes to present the in-

stant brief in support of the position taken by the City of

Chicago in the present. cause.

We would like to acknowledge the assistance in the

preparation of this brief of Daniel Pierce, a third year

law~stadent at De Paul Sniveralty, Chicago.

vo

3

* |

SUMMARY OF ARGUMENT |

I.

In Griffin v. Illinois, 351 U.S. 12 (1956) this Court held

that an indigent defendant who has been convicted of a

felony chargg’ is entitled to a free transcript for purposes

of an appeal. However, this Court also made it clear. that

a verbatim transcript is not the only method whereby

evidence can be presented to an appellate court for re-

view. For example, the use can be .made of a bill of ex-

ceptions, a method long approved by Illinois and other

jurisdictions.. Said bill of exceptions can be prepared

from the notes of the court, of counsel, or anyone ‘else

who was present ‘during the trial. In addition, Minois

“Supreme Court has permitted the use on appeal of

néethodscother than a verbatim transcript in Supreme

Court Rules 323 (ce) and (dy.

However, petitioner clidse notto avail himself of any

of these procedures, contending, instead, that these

* methods ,were inadequate. However, since the alternate

Illinois procedures have not been shown to be inadequate,

petitioner is now estopped from contending that he has

a constitutional right to a,verbatim transcript.

Il:

Williams v. Oklahoma City, 395 U.S. 458 (1969) is not

controlling,’ as alleged by the petitioner. Although Wil-

ligms is similar to the instant case in that it als6 in-

volved the question of the right to a free transcript .by

an indigent defendant, the other facts presented there

are essentially different. Under Oklahoma law, a criminal

appellant had to purchase a. “case-made,’’ gr verbatim

transcript, -before he was permitted to appeal to the

Yo?

4

Oklahoma Court of Criminal Appeals. This Court held

that it was a denial of equal protection to preclude an

indigent defendant from appealing merely because he was

unable to purchase a “case-made,” which was the only

way to present the evidence of the trial to the reviewing

court.

However, in Illinois there are alternative methods to

the preparation of a verbatim transcript in which ‘to

present an appeal, making this case patently distinguish-

able from Williams.

In addition, the defendant in Williams received a 90

day jail sentence, while the instant petitioner received,

and indeed could only have received, a fine. As will .be

noted in Point III, there has been no- intent shown by

this ‘Court to extend any of the related constitutional

rights to defendants convicted of offenses providing for

only a fine as a penalty, thereby implying a similar in-

tent regarding free transcripts.

-. IIT.

_ The question. of the extent to which constitutional

tights are to be applied is often answered in light of the

practical considerations facing this Court. For example,

although the right to a trial by jury has always .been

considered as fundamental to the American system of

justice, that right has been limited to other than “petty”

offenses. The basis for this limitation has been that the

need for efficient and speedy adjudication outweigh any -

benefits which might accrue to defendants accused of

petty offenses and who wish jury trials. .

Similarly, this Court has impliedly determined that the

right to counsel guaranteed in felony trials in Gideon v.

.

5

Wainwright, 372 US. 355, is net to be extended to petty |

offenses, for this Court has,.on at least three occasions,

denied certiorari in cases where the question of the right .

to’ free counsel, to indigent. misdemeanants has been

raised. In addition, in issuing its recent Rules of Pro-

eedure for the Trial of Minor Offenses before United

States Magistrates, this Court has not included the right

to counsel to indigent defendants in trials involving petty

offenses.

The limitations placed on both the right to trial by

'* jury and the right to counsel are grounded on a realiza-

tion of the practical problems facing the bench with its

overcrowded dockets and ‘the bar with inadequate man-

. power: Taking the same practical approach with the in-

stant question leads to the conclusion that the right of

. an indigent defendant to a free transcript must be limit-

ed to cases where said defendant has been convicted of

other than a “petty” offense. °

ARGUMENT

I. | |

SINCE THE PETITIONER MADE NO EFFORT TO

UTILIZE ANY OTHER AVAILABLE MEANS TO

AFFORD HIM APPELLATE REVIEW, HE IS NOW

ESTOPPED FROM CONTENDING THAT THE FAIL-

URE TO PROVIDE HIM A FREE TRANSCRIPT |

VIOLATED HIS CONSTITUTIONAL RIGHTS. ©

~ In the landmark decision of Griffin v. Illinois, 351 U.S.

* 12 (1956), your Honors ruled that if a State provides an

avenue of appellate review it must also provide a free

transcript to any indigent appealing a felony conviction.

However, Mr. Justice Black, writing the majority. opin-

ion, clearly indicated that a transcript need: not be pro-

‘ vided in every indigent appeal:

“We do not hold, however, that Illinois must pur-

chase a stenographer’s transcript in every case where

a defendant cannot buy it. The Supreme Court’ may

find other means of affording adequate and effective

appellate review to indigent defendants. For ex-

ample, it may be that bystanders’ bill of exceptions

or other metheods of reporting trial proceedings

could be used in some cases (Illinois cases cited.).’’

351° U.S. at 20. (Cf. Smith v. Bennett, 365 U.S. 708,

, 710 (1961); Eskridge v. Washington Board of Prison

“Terms and Paroles, 357 U.S. 214, 216 (1958); John-

son v. United States, 353 U.S. 565, 566 (1957).

It is important to note that not only has a long line

of cases in Illinois approved the use of bills of excep-

tions without an accompanying transcript (See dissent-

ing opinion of Mr. Justice Harlan in Griffin, supra at

page 31), but the use of said method of review has long

been historically approved. As was noted by Mr. Justice

7

- White, with whom Mr. Justice Clark, Mr. Justice Harlan

and Mr. Justice Stewart joined, dissenting, in Draper v.

Washington, 372 U.S. 487, at 502, citing Miller v. United

States, 317 U.S. 192, 198 (1942):

“Historically a bill of exceptions does not embody a

verbatim transcript of the evidence but, on the con-

trary, a statement with respect to the evidence ade-

quate to present the contentions made in the appel-

late court. Such a bill may be prepared from notes

kept by counsel, from the judge’s notes, from the

recollection of witnesses as to what occurred at trial,

and, in short, from any and all sources which will

contribute to a veracious account of the trial judge’s

action and the basis on which his ruling was in-

voked.’’

Further, it is important to observe that the [Illinois

Supreme Court has acted in a manner consistent with

this historical rule by providing in Rules 323 (ce) and

(d) of its Rules of Practice, alternative methods to a

verbatim transcript which may be usea for appellate re- |

view 43 Ill: 2d R. 23 (1969). Rule 323 (ce) provides that

the appellant may initially prepare a proposed -report of

proceedings, which can be amended by the appellee and

- the final version ultimately approved by the trial court.

Rule 323 (d) permits the filing of an agreed statement

of facts upon written stipulation.

Yet, despite the availability of historical and statutory

methods of reconstructing the record, petitioner has

made no effort to utilize any of them. Rather, it is his

contention that, were he to proceed under the provisions .

of these Rules, he might find himself in a procedural -.

trap, being bound to an “agreed” or “settled” statement

of facts with which he really doesn’t agree. Yet a view

8

of Rules 323 (c) and (d) clearly indicates that once an

appellant has initiated a procedure to try to accurately

recapture what océurred at, trial, he is not irrevocably

bound by what subsequently occurs. Rather, if he feels

that his discussion with the Court and other counsel

renders incomplete or inaccurate results, he is quite free

to then request ‘a verbatim transcript as the only possi-

ble method under the circumstances to-adequately present

what occurred to the reviewing court. But this determina-

tion must be made after attempting to utilize these other.

methods, for as was observed in the dissenting opinion

of Mr. Justice White in Draper v. Washington, supra.,

counsel for the petitioner could have prepared and pres-

ented to the trial judge a bill of exceptions, “as was his

duty.’’ 372 U.S. at 503.

Having failed to attempt to prepare a -narrative bill

of exceptions, and having explained none of -the cir¢um-

stances which prevented them from doing so, (such an

attempt at reconstructing the record was apparently

‘ made by petitioner and his counsel in Williams v. Okla-

homa City, 395 U.S. 458 (1969) ), the attorneys for peti-

tioner are now estopped from contending: that petitioner’s

constitutional rights were violated when the Illineis Su-

preme Court refused to grant him a free trnascript. (See

dissenting opinion of Mr. Justice Harlan in Griffin,

supra., at page 32). Petitioner is: simply not free to ig-

nore established available, methods of procedure upon

the supposition that these procedures possibly might not

render adequate results.

II.

THE DECISION IN WILLIAMS v. OKLAHOMA CITY

DOES NOT REQUIRE THE GRANTING OF A FREE

TRANSCRIPT IN THE INSTANT CASE.

It is the contention of the petitioner that the instant

case is “identical in all important respects’? with Wu-

liams v. Oklahoma City, 395 U.S. 458 (1969), (Appel-

lant’s brief, p. 6) and éonsequently, Williams “controls

this case.” (Appellant’s brief, p. 17). However, a reading

of Williams reveals crucial differences with the instant

case and clearly: indicates that the holding in Wiliams

does not require the granting of a free transcript under

facts such as presented in the case at bar.

In Williaas it was noted that both the trial court and

the Oklahoma Court of Criminal Appeals had ruled with

regard to petitioner’s motion there that no indigent con-

victed for a violation of a city ordinance petty in nature,

"was entitled to a case-made or transcript at city expense

in order to perfect his appeal from that conviction.

The definition of a ‘case-made’ under Oklahoma pro-

cedure was found on page 8 of the Brief of the respond-

ent in Williams v. the City of Oklahoma City. Citing

Bennett v. State, 152 P. 2d 388, the respondent quoted —

_ the Oklahoma Court of Criminal Appeals:

“A ‘ease-made’ consists of those things which. tran-

spired in court during the trial and which are not

part of the record, while a ‘transcript of the Record’

contains ev erything of which the clerk is, required

‘to make a record.”

This definition indicates that a “case-made” is actually

synonomous with a verbatim. transcript, while a “tran-

10

script’? under Oklahoma law; includes all other portions

of the appellate record.

- The pertinent Oklahoma statute (Okla. Stat. Amn. Tit.

22 § 1059 (1958)) required that the appellant order a

case-made in-all criminal cases appealable to the Okla-.

homa Criminal Court of Appeals, making the preparation

of the case-made (or verbatim transcript), in essence, a

condition precedent to the docketing of a criminal appeal

in Oklahoma.

The Supreme Court held in Williams that since a crim-

inal defendant may take an appeal as a matter of right

from any judgment against him, that to limit this right

to only those who are able to pay for the preparation of

a case-made is an.unreasoned distinction forbidden by

the Fourteenth Amendment. .

‘However, there is no requirement placed on criminal

appellants under Illinois procedure to first purchase a

verbatim transcript before being afforded the opportunity

to appeal. Petitioner Mayer was permitted to docket his

appeal in the Ilinois Supreme Court and had available

under the Rules of the Illinois Supreme Court methods

other than the filing of a verbatim transcript in which to

present evidence on appeal. Supreme Court Rules, 323

{c) and (d) state as follows:

“(c) Procedure if No Verbatim Transcript Is Avail-

able. If no verbatim transcript of the evidence or

proceedings is obtainable the appellant may prepare

a proposed report of proceedings from the best avail-

able sources, including recollection. It shall be served

within 7 days after ‘the notice of appeal is filed.

Within 21 days after the notice of appeal is filed,

any other party may serve proposed amendments or

his proposed’ report of proceedings. Within 7 days °

thereafter, the appellant shall, upon notice, present

11

the proposed report or reports and any proposed

amendments to the trial court for settlement and .ap-

proval.. The court, holding hearings if necessary,

shall promptly settle, certify, and order filed an ac- ©

curate report of proceedings. (d) Agreed Statement

of Facts. The parties by written stipulation may

agree upon a statement of the facts material to the

controversy and file it in lieu of and within the time

for filing a report of proceedings.”

However, as was noted in Point I of this brief, peti-

tioner chose not to utilize either of these means. But, the

essential consideration is that alternative, adequate

methods to the purchase of a verbatim transcript are.

possible under Illinois procedure in order to preserve

evidence for ‘appeal. Since such alternatives were not °

available under Oklahoma law, the facts presented in __

Williams are critically different from those in the case- °

at-bar. Consequently, the holding in Williams does not

control the decision to be made in the instant case. .

Another important distinction to be drawn’ between

Williams and the case-at-bar, indicating that Williams is

not persuasive authority, is that in, Williams the defend-

ant received a 90 day jail sentence and a $50 fine, where-.

as in the present case, petitioner received two $250 fines

for violations of two City of Chicago ordinances Muni-

cipal Code of Chicago, Ch. 11, § 11-33 and Ch. 193 §

1(a)), which provided for maximum penalties of $500. .

As will be discussed in Point ITI of this brief, an analysis

of related cases by the Supreme Court indicates a mani:

fest intent not to expand the right to free transcripts to.

include cases where indigent defendants have been con-

victed of. misdemeanors or ordinance violations: where

the only possible punishment is a fine. |

12

IIl.

A REVIEW OF SUPREME COURT DECISIONS IN

. AREAS RELATED TO THE QUESTION OF FREE

TRANSCRIPTS FOR INDIGENT DEFENDANTS IN-

DICATES A CLEAR INTENT TO LIMIT THE

GRANTING OF FREE TRANSCRIPTS ONLY TO

DEFENDANTS WHO HAVE RECEIVED JAIL SEN-

TENCES.

In considering the merits of the present case, this

Court is faced with the important question concerning

whether or not to extend the right of an indigent -de-

fendant to receive a free verbatim transcript for use on

appeal to cases where the defendant has been found

-_ guilty of a misdemeanor or ordinance violation, where

the only possible punishment is a fine.

Although it was stated in Griffin v. Illinois, 351 US.

12 (1956), the ‘first case granting the right to free tran-

scripts to indigent defendants, that the aim of our entire

judicial system is to permit all people charged with

crime to “stand on an equality before the bar of justice

in every American court” (351 U.S. at 17), it is the

position: of the authors of this brief that this broad

language has been, and indeed, must necessarily be,

limited by this Court. A brief review of the recent deci-

sions of this Court concerning the right to a jury trial

‘and the right to counsel indicates that this Court has

endeavored to determine the rights of individual defend-

ants in light of the rights of all defendants tried by the

American judicial process. As Mr. Justice Frankfurter

stated in his concurring opinion in Griffin:

13

“Nor does the equal protection of the laws deny a

State the right to make classifications in law when

such classifications are rooted in reason. The equality

at which the equal protection clause aims is not a

disembodied equality. The Fourteenth Amendment

enjoins the “equal protection of the laws’’ and laws

are not abstract propositions.” 351 U.S. at.21.

Considering the concrete problems facing the bench

' and the bar of the United States, this Court has limited

both the right to jury trials and the right to counsel.

The right to a trial by jury has always been an in-

tegral part of our American system of justice. Indeed,

trial by jury was described'by Mr. Chief Justice Warren

_in Singer v. United States, 380 U.S. 24 (1965) as “the

normal and preferable mode of disposing of issues of fact

- In criminal cases.” 380 U.S. at 35. In 1968, this Court was

faced with the question of determining whether the Sixth

Amendment, guaranteeing the right to a speedy and pub-:

lic trial-in all criminal prosecutions, was to be made ap-

plicable to the states by the Fourteenth” Amendment. In

holding that the Sixth Amendment guarantees were pro-

tected against. state action by the Due Process Clause of |

the Fourteenth Amendment, this Court in Duncan v.

Louisiana, 391 U.S. 145 (1968) noted that “trial by jury

in criminal cases is fundamental to the American ‘scheme

of justice.” (391 U.S. at 149). Yet, this Court also stated

that it has been the long-established view that “petty of-

fenses’’ may be tried without a jury. The rationale for

this limitation was rooted in an historical view of jury

trials: . : |

“So-called petty offenses were tried without juries

both in England afd in the Colonies and have always

been held to be exempt from the otherwise compre- |

hensive. language -of the Sixth Amendment’s jury

14

trial provisions. There is no substantial evidence

that the Framers intended to depart from this estab-

lished common-law practice, and the possible conse-

quences to defendants from convictions for: petty of-

fenses have been thought insufficient to outweigh the -

benefits to’ efficient law enforcement and simplified

judicial administration resulting from the.availability

of speedy and inexpensive non-jury adjudications.”

391 U.S. at 160 (Emphasis added)

When this Court was later called on to decide what. -

was to be considered “petty’’ for the purposes of -déter-

mining the right to a trial by jury, it ruled that a possi-

ble six-month penalty is short enough to permit classifi- .

cation of the crime as “petty.” Baldwin v. New York,

399 U.S. 66 (1970). Although this Court admitted that

the disadvantages facing a defendant charged with a

crime punishable with up to six months in prison were. -

“onerous,” nevertheless, it followed the posture. enunci-

ated in Dunan, supra. and held that the detriment in- '

curred by such defendants is clearly outweighed by the

benefits accruing to the entire judicial system; i.e., keep-

img the jury trial courts free to try serious offenses.

Indeed, this Court, in promulgating its new Rules of”

Procedure for the Trial of Minor Offenses before ‘United

_ States Ma’ gistrates, 8-Cr. L. 3091, (January’ 27, 1971), ©

continued to draw the distinction’ between “petty” of-

fenses and other crimes by denying the right to a jury

in the trials of “petty” offenses. (Rule 3(c)(1)). °

This practical approach of analyzing thé extent of ‘

constitutional rights has also been utilized in determin:

ing when an indigent defendant is to be permit d the

right to appointed counsel. In 1963 the Supreme Court,

in Gideon v.Wainwright, 372 U.S. 335, determined for

the first time that an indigent defendant was. ertitled to

oo

a

(

‘ | - 15

| ppointed counsel when being tried for a félony. This

| ourt, in. determining whether the Sixth Amendment

‘ right to counsel was fundamental and essential to a fair

trial and, therefore, made obligatory upon the States by ~

the Fourteenth Amendment, looked to language of past

decisions. Such language as: “The right to the aid of,

counsel is of this fundamental character.’’ Powell v. Ala-

bama, 287 U.S. 45, 68), and “The assistance of counsel

‘is one of the safeguards of the Sixth Amendment deemed

necessary to insure fundamental human rights*of life and

liberty.” (Johnson v. Zerbst, 304 U.S. 458, 462 knee)

led this Court to conclude at 372 US. 44:

“Not only these precedents but also reason and re-

flection require us to recognize that in our adversary

. system of criminal justice, any person Haled into

court, who is too poor to hire a lawyer, cannot be:

assured a fair trial unless counsel is*provided for _

4 ‘him. This seems to us to be an obvious truth.’

This Court, in a companion case to: Gideon decided the -

same day, Douglas v. California, 372 U.S. 353 (1963), ex- |

- *s 4 ‘teuded.the right to counsel .to appeals from felony con- °

. VY -- vietions. ‘Referring to Griffin v. Illinois, 351 U.S. 12°

— - (1956), the Court noted. that once having gratited appel-

late review, a State may not discriminate against some —~_ °

convicted defendants on account of their poverty. Citing“ \

Griffin once again, this ‘Court went on to state:

“For there can be no equal justice where the kind

of appeal a man enjoys depends on the amount of

money he has.” 372 U.S. at 355.

, like the broad language found in Dunan (supra.),

ith regard to’the fundamental and important nature of

jury trials, the language of the Gideon and Douglas deci-

|. sions has“been limited in practieal application. The ques-

tion of whether the right to counsel extends fo an indig-

wT

1

1

‘ . * ? \ ‘

Lf ; ; ———_—_ —_

16

ent defendant facing misdemeanor charges has been con-

sidered by several State and Federal courts, with deci-

sions going both ways.’ However, this Court has refused

to consider: the issue ‘on at least three occasions. In Win-

ters v.° Beck, 385 U.S. 907 (1966), this Court denied

certiorari in a case where a defendant was sentenced to

30, days in jail and received a $254 fine for the misde-

meanor of immorality, after being: tried without the as-

sistance of coynsel. Mr. Justice Stewart, dissented, along

with Mr. Justice Black, noting that he would grant —

certiorari because the Fifth Cireuit had ruled in two

‘other cases that the right to free counsel extends to mis-

demeanors, thereby causing a conflict in law in the same

circuit. (See footnote 1). Similarly, in DeJoseph y. Conn-

ecticut, 385 U.S. 982 (1966) certiorari was denied. In

that case a defendant, about to be tried for the misde-

meanor of criminal non-support, alleged that he was in-

digent. and requested that counsel be’appointed. Counsel

was denied, the defendant represented himself, was found

guilty, and was sentenced to six months. Once again Mr.°

Justice Stewart dissented to the refusal to granf cert-

iorari and was joined by Mr. Justice Black and Mr. Just-

1. Degisions holdivig that the right to counsel extends

to indigent misdemeanor defendants include Harvey v.

State of Mississippi,. 340 F. 2d 263 (5th Cir. 1965); Mc-

Donald’ v. Moore, 353 F. 2d 106 (5th Cir. 1965); People v.

Mallory, 378 Mich. 538, 147 N.W. 2d 66 (Mich. 1967).

Decisions denying court- appointed counsel for misde-

meanors include People v. Dupree, 42-Ill. 2d 249, 246 N.E.

2d 281 (Ill. 1969), Cert. Denied, 396 U.S. 1047 (1970);

Winters v. Beck, 239 Ark. 1093, 397 S.W. 2d 364 (Ark.

1965),. Cert. Denied, 385 U.S. 907 (1966); DeJoseph v.

Connecticut, 3 Conn. Cir. 624; 222 A. 2d 752 .(Conn. 1966),

Cert. Denied, 385 U.S. 982 (1966) ; State v. Bennett, 266:

N.C. 755, 147 S.E. 2d 237 (N.C. 1966).

17

ice Douglas. Finally, in People v. Dupree, 42 Tll. 2d 249,

246 N.E. 2d 281 (Ill. 1969), the defendant was convicted

of battery, a misdemeanor and was sentenced to two

- years probation, with the first 90 days to be served in

jail. Since the maximum sentence possible was six months

in jail and a $500 fine, the Illinois Supreme Court ruled

that the defendant did not have to be informed of his

right ‘to counsel. Once again cerfiorari ‘was denied over

the dissent of Mr. Justice Black. 396 U.S. 1047 (1970).

Acting in a manner consistent with the denial of cert-

iorari in’ these three cases, this Court, in issuing its

Rules of Procedure for the-Trial of Minor Offenses be-

fore United States Magistrates, 8 Cr. L. 3091 (January

27, 1971), pointedly failed to include the right to ap-

pointed counsel for indigent defendants charged with

petty offenses. (See dissent of Mr. Justice Black with

Mr. Justice Douglas for a discussion of the issue at page

3093).

It is the position of the authors of this brief that this

decision to limit the right to counsel to indigent defend-

ants accused of*non-petty offenses is once again based

on practical considerations. As the Illinois Supreme

Court noted in People vi, Dupree, supra.:

-“To construe as defendant contends, a constitutional

mandate that defendant have counsel in all eases,

irrespective of the seriousness of the offense, the |

punishment involved or defendant’s request for coun-”

sel, unless the record shows his express waiver, .

would impose burdens upon the bar and bench in no.

- way required or contemplated by the landmark cases’

protecting constitutional rights in criminal proceed-

ings.” (42 Tll. 2d at 256.)

Indeed, a decision to. require counsel for all misde-

meanor defendants would be strongly felt by the court

— ek BESTE na RAS, TAA a ES

18

system as a whole and by the bar in particular. The

social utility of expending the limited resources of the

courts and the bar upon petty cases might well be called

into question. Injecting lawyers into the approximately

40,000 to 70,000 misdemeanor cases handled each year

by just the courts ‘of Cook County, which. also handle «

180,000 to 210,000 ordinance violation cases annually,

would undoubtedly have profound consequences for the

administration of both criminal and civil justice.’

Others have made the same observation about this

problem in other jurisdictions. See Cableton vy. State, 243

Ark. 351, 420 S.W. 2d 534, 536-38 (Ark. 1967); Comment,

The Indigent Defendants’ Right to Counsel. in Misde-

meanor Cases, 17 S.W. LJ. 598, 612 (1965). .

A concrete example of the impact on the bar of ex-

tending the tight to cotinsel to all cases involving fines

was found in People v. Letterio, 16 N.Y. 2d 307, 213

N.E. 2d 670 (1965), where the Court of Appeals of New

York ruled that no. constitutional mandate exists re-

quiring a court hearing a traffic case to advise a defend-

2. In 1970 the courts of Cook County disposed of

248,207 misdemeanor and ordinance violation cases.

Statistial Report: Cases, Fees and Cost, 1967-1970, pre-

pared by the office of Matthew Danaher, Clerk of the Cir-

euit Court of Cook County, Illinois. The total misde-

meanor casés are no longer kept separate from the total

number of ordinance violation cases. In 1963, the last

time such figures were kept distinct, it was found that

- there were 4 ordinance violation charges for every mis-

demeanor charge in Cook County. Administrative Office

of the Illinois Courts, 1967 Annual Report to the Su-

, preme Court, p. 82. These figures are, of course, exclu-

sive of the over 1,200,000 Cook County traffic cases dis-

posed of annually. Danaher Report, p. 12.

tZ7™

19

ant of his right to counsel. The Court observed at page

672:

“We point out that the practical result of assigning

counsel to defendants in traffic cases would be

chaotic. Assigning counsel in but 1% of these mil-

lions of cases would require the, services of nearly

half the attorneys registered in the State (See Tenth

Annual Report of Judicial Conference N.Y. Legis.

Doc., 1965 No. 90, p. 205).”

Clearly, the limitation placed on the right of an indig-

ent defendant to have the availability of appointed coun-

sel, has been dictated by the practical considerations fac-

ing the courts.

Similarly, the question of the extent to which the

right to free transcripts by indigent defendants should

. be applied must be viewed with an eye on the probable

impact on the bench and bar. As was noted in footnote

2, there were nearly one-quarter million misdemeanor

and ordinance. violation cases disposed of in Cook County

in 1970. If a constitutional rule were fashioned requiring

that indigent defendants convicted of such charges be

given free transcripts if they wished, doubtless some of

them would avail themself of the opportunity. (It is esti-

mated ‘that 25% of the defendants in misdemeanor cases

are- indigent. Silverstein, Defense of The Poor in Crim-

inal Cases in American State Courts (1965), Vol. 1, pp.

124-125). If but a fraction of one percent of*such de-

fendants demanded free transcripts, the effect would be

to, in essence, submerge an appellate court system that is

already badly losing a battle to dispose of as many cases

per year as are filed. The yearly figures published by the

Administrative office of the Illinois Courts regarding the

five districts of the Appellate Court of Illinois clearly -

reveal that a severe crisis faces that court. On January

i

s

Aaa

oo ane ne

iii Nata AAR iin stint nig at Re AN AA Sol fo I ETE 3

7

‘=

®

°

RESERV EE RSE NE A OT ON y satan’

-

20

1, 1967, the number of eriminal cases pending “in the five

districts of the Appellate Court totaled 551. Four years

later, December 31, 1970, that.figure had jumped to 1055,

an inerease of 91.4%. The-civil docket has also’ increased,

but not so dramatically (813 eases on January 1, 1967 to

1206 on December 31, 1970; an increase of 48.3%). Being

entrusted with the burden of carrying a greatly increased

caseload, the Appellate Court ‘in 1970, disposed of 40

eriminal cases which had been on the docket over three

years; 153 cases 2 to 3 years old, 85 cases 11% to 2 years

okd, 78 ecases.1 to 144 vears old, 115 cases 6 to 12 months

old, and 94 cases under 6 months old. In short, nearby

one-half of the defendants in the 565 cases decided by

the Appellate Court of Illinois in 1970 had to wait over

a year anda half from the date their appeal was filed

until the date the case was decided.

Very iiuntly, the Appellate Court finds itself in a

‘vicious circle, with no method: available to remove the

circle. Although 1496 civil and criminal cases were dis-

posed of in 1970 (1079 with full opimion—an average of

45 opinions per Justice), the Court found itself with a

substantially heavier caseload on December 31, 1970, since

1856 cases were filed during the year (360 more cases

filed than eases disposed).

_ Although a new Fifth Division 3 was added to the First

District of the Appellate Court: in November, 1970, in-

creasing the Appellate Court panels in Illinois from 8 to

9, the increase of the number of Justices by one-eighth

will not begin to solve the case-load dilemma. As was

~ noted earlier, the number of criminal cases pending in

the Appellate Court has nearly doubled: in the. last -four

years and the civil case load has increased by 50 percent.

In addition, the Illinois Supreme Court has amended its —

—~——

21.

own Rule regarding its jurisdiction over criminal mat-.

ters. Since July 1, 1971, the effective date of the new:

rules, the Illinois Supreme Court has now become a

leave-to-appeal Court, permitting appeal. as.a matter of

right only in criminal cases in which a statute of the

United States or the State of Illinois has been held in-.

valid and in appeals by defendants from judgments of

the Circuit Courts imposing a sentence of death. All other

appeals in criminal cases are to be taken to the Appellate

Court (Rule 603, as amended July 1, 1971 Illinois Su-

preme Court Rules). Quite obviously, the Illinois -Su-

preme Court has divested itself of virtually all its erim-

inal docket, since relatively few cases appear where a

. criminal statute is held unconstitutional or a defendant

is sentenced to death. Since there were 226 criminal deci-

sions rendered by the Illinois Supreme Court in 1970 and

since a great percentage of such cases will appear on the

Appellate Court dockets in the future, the case-load prob-

lem facing the Appellate Courts of Illinois ‘has become

even more acute. | |

In Klopfer v. North Carolina, 386 U.S. 213 (1967), this

Court held that the Sixth Amendment’s quaranty of an

accused’s right to a speedy trial was rendered applicable

to the States through the Due Process Clause of the

Fourteenth Amendment. If the right to a speedy trial is —

guaranteed all defendants, most certainly the right to a

speedy na, must also be included. But, when appellate

courts such as those in Illinois are already faced with

ease loads which are impossible to handle adequately, to

impose a further burden of deciding cases a number of

indigent cases such as the instant case, where the only

punishment is a fine, would be a clear denial of due

process for those defendants convicted of serious crimes

i A a a ah a aa Cat hs

22

.

and awaiting appellate decision. The language of Mr.

Chief Justice Warren in this regard in Coppege v. United

States, 369 U.S. 438 (1962) is particularly. instructive:

“No general respect for, nor adherence to, the law .

as a whole can well be expected without judicial

recognition of the paramount need for prompt, emin-

ently fair and sober criminal law procedures.

The preference to be accorded criminal appéals

recognizes the need for speedy disposition of such

eases. Delay in the final judgment of conviction, in-

cluding its appellate review, unquestionably erodes

the efficacy of law enforcement.” (369 U.S. at 449.)

Consequently, it is suggested that the same approach

this Court has taken with regard to the light to jury

trials be taken in deciding the instant issue. Although

jury trials are “fundamental to the American scheme of

justice’? Dunan, supra: at 149, this Court has limited the

-right to ‘jury pee “petty” offenses, recognizing that

the necessity fo cient law enforcement and effective

judicial administration outweigh the possible adverse .

consequences to defendants convicted of petty offenses.

Duncan, supra, at 160. It is therefore suggested that the

term “petty’’ also be utilized in determining what crimes

would justify the granting of a free transcript to an in-

digent defendant. It is further suggested that the case of

Williams v. Oklahoma City, supra, has already provided

the definition of a “petty offense” within this context,

iLe., @ minimum of 90 days in jail. If this standard were

established, then appeals by indigent defendarits who

will never: have to face on day in jail would not be

placed on already overcrowded appellate dockets, there-

| by avoiding even longer determinations of cases involv- ©

ing serious crimes.

~The language ‘of Mr. Justice Marshall in Prank v.

United States, 395 U.S. 147 (1969), is relevant to this

_ 23

t%

discussion. In Frank, it was determined that a charge of

criminal:contempt is still to be considered “petty” for

the purposes of determining the right to a jury ‘trial

even though the defendant was placed on probation for

three years. Mr. Justice Marshall noted at page 151:

“Probation, of course, is a significant infringement

of personal freedom, but it is certainly less onerous

a restraint than jail itself.”

Unlike a sentence of probation, where a defendant is

quite restricted in his activity—being required to report

periodically to his probation officer, being prohibited

from associating: with certain types of persons, not being

permitted to leave the probation district without the per-

mission of his probation officer, etc.; the defendant in

the instant case has had no such restraints placed on his

freedom. And, under the.recent ruling of Tate v. Short,

401 US. 395 (1971), he cannot now be jailed for finan-

cial inability to-pay the fine.

Consequently, the facts in the instant case indicate

-even more strongly than Frank, supra, that the offenses.

here involved were “petty” in nature. Having been

‘charged with ordinance violations for which the only

possible punishment was a fine, the petitioner was there- ©

fore not entitled to a free transcript for purposes of ap-

‘peal.

However, if it were. to be determined that the petitioner

should be given a free transcript.for appéllate purposes,

then it would also seem that a defendant ni similar cir-

cumstances should be entitled to free counsel on appeal.

As Mr. Justice Schaefer of the [Illinois Supreme Court

has stated:

“Of all the rights that an accused person nd the*

right to be represented by counsel is by far the most

24

pervasive, for it affects his ability to assert any

other rights heymay have.’’ Schaefer, Federalism and

State Criminal Procedure, 70 Harv. L. Rev. 1, 8

(1956).

~~

For a indigent defendant to = given a free transcript,

but denied the knowledgeable hand of an attorney to —

assist him’ on appeal would be to reduce the appellate

process for such a defendant to a “meaningless ritual.”

Douglas v. California, supra., 372 U.S. at 358.

Furthermore, it would seem that if free counsel were

to be required in all indigent appeals, the necessity of

counsel at trial would tbe even more essential. For, as

was stated in Gideon v. Wainwright, supra., citing Mr.

Justice Sutherland in Powell v. Alabama, 287_U. ia 45, 68-

69 ( 1932) : .

“The right to ‘be heard would be, in many cases, of

little avail if it did not comprehend the right to be

heard by counsel. Even the intelligent and educated

layman , has small and ‘sometimes no skill in the sci-

ence of the law. If charged with crime, he is ineap-

able, generally, of determining for himself whether

the indictment is good or bad. He is unfamiliar with

the rules. of evidence. Left without the aid of coun-

- .sel he may be put on trial without a proper charge,

and convicted upon improper evidence or evidence

irrelevant to the issue or otherwise inadmissible. He

lacks both the skill and knowledge adequately to pre-

pare his defense, even though he have a perfect one.

He requires the guiding hand of counsel at every _

step of the, proceedings against him: Without _it,

though he be not guilty, faces the danger of “on-

viction because he does ray know how to estabfish:

44-345.

But,. if appointed counsel were to be granted at trial

for indigent defendants who were charged with offenses

his innocence.”’ 372 U.S. at

. ar;

which only permit a fine as punishment, such as the

_ charges placed on the instant petitioner, then it would

seem that free counsel would have to: be appointed in all

instances where an indigent has beén charged with any

violation involving a fine. If this were to occur, then the

full time services of virtually the entire membership of

- the bar would be required as appointed» counsel. (See-

People v. Letterio, supra.) But even if defendants in . o

traffic cases, were to. be excluded from these constitution-

al guarantees, the fact nevertheless remains that nearly

250,000 misdemeanor and ordinance violatioh cases are

disposed of yearly in Cook County, Illinois, alone. .(See-

footnote 2, supra.) It cannot possibly be considered, that .

‘ this Court, realizing the obvious impact on the adminis- .,

tration of justice if the right to counsel were extended

to such cases, ever contemplated in Gideon that the right

to counsel should be extended that far.

Realizing thes impact that the logical extensions flow-

ing from the ruling petitioner seeks in the case-at- bar,

i.e., appointed counsel at both the appellate and trial

levels, this Court must consider the practical considera-

- tions inv olved and therefore, limit, as has been done with

the right to trial by jury, the right to a free transcript .

to only when an indigent defendant has been convicted

of a.“non-petty” crime.

It has been sated that “Illinois has shown a broad ‘and

commendable latitute in implementing the principles. ;

enunciated “in Griffin.” Norvell v. Illinois (dissent), 373

U.S. 420 at 426. Illinois, in exercising its right to promul-

_ ‘gate its own Rules ‘of criminal procedure, (Spencer v.

Texas, 385 U.S. 554, 569 (1967)) has ruled that the peti-

tioner is not entitled to a free transcript since he was -

charged with .an offense involving only. a possible fine.

Since a State has a further right to moke reasonable -

yO | 26

classifications without violating the¢Due Process Clause |

of the Fourteenth Amednment, (Griffin v. Illinois, supra.

(concurrence by Mr. Justice Frankfurter, 351 U.S. at 24;

Douglas v. California ,supra., 372 U.S. at 356), the rul-

ing made in the instant case is clearly constitutional, for © |

it is not at all unreasonable to fail to require the same

benefits for defendants convicted of “petty” offenses,

such as the instant PER HODeT, as those provided to de-

fendants convicted of ‘ ‘serious’ ’ offenses. .

\

-

CONCLUSION.

_ For the reasons set forth herein, the office of the State’s

Attorney of Cook Couny respectfully requests that the

Order of the Supreme Court of Illinois denying the peti-

tioner a free transcript for his | appeal to that Court. be

affirmed. |

Respectfully submitted, - %

Epwarp VY. Han iRAHAN,

State’s Attorney of Cook County, Hlinois,

900 Chicago Civic Center,

Chicago, Illinois 60602,

" 321-8750, ;

Amicus Curiae.

Vincent BENTIVENGA,-

Chief of Civil Division,

James A. Rooney, |

Pauw P. Brepet, Jr.,

Assistant State’s Attorneys,

Of Counsel.

APPENDIX

CRIMES PUNISHABLE ONLY BY FINE -

UNDER -THE PROVISIONS OF THE

CRIMINAL CODE OF ILLINOIS —s

(ILLINOIS REVISED STATUTES, |

. CHAPTER 38 (1969) _

"10. 1. § 12-1. Assault.] (a) A person * commits an as-

sault when, without lawful authority, he engages in” con-

duct which: places another in reasonable apprehension of

receiving a battery.

_ (b) Penalty. .

A person convicted of assault shall be fined not to ex-

“ced $500. i. $

16-2. § 16-2. Theft of Lost or Mislaid Property.] A

petson who obtains control over lost or mislaid property

commits theft when he:

(a) Knows or learns the identity of the owner or.

knows, or is aware of, or learns of a reasonable method |

of identifying the owner, and ”

° 5 (b) Fails to take reasonable measures to restore the

‘property to the owner, and

(¢) Intends to d@prive the owner permanently sf the

use or benefit of the property.

i

_ @

Penalty. | | . :

A person convicted of theft of lost or 5 ttisiaid property

shall be fined not to exceed $500 or double the value of

such property, whichever is greater.

29A-1. Offering a Bribe.] § 29A-1. A person commits |

commercial bribery when he confers, or offers or agrees

28

to confer, any benefit upon any employee, agert ev fiduci-

ary without the consent of the latter’s em?.jover or prin-

cipal, with intent to influence: his conduct i relation to

his employer’s S OF eo et s affairs. |

Added by P.A.°76-1129, § 1,\eff. Aug. 28, 1969.

29A-2. oosntiae’ a Bribe.] § 29A-2. An employee, agent

or fiduciary commits commercial bribe receiving when,

without consent of his employer or principal, he solicits,

accepts or agrees to aecept any benefit from another per-

son upon an agreement or understanding that ‘such bene-

- fit. will influence his conduct in relation to his employer’s

or principal’s affairs. | |

Added by P.A. 76-1129, § 1, eff. Aug. 28, 1969.

29A-3. Penalty.] § 29A-3. A person eonvicted of ecom-

mercial bribery or commercial bribe receiving shall be

fined not to exceed $5,000.

Added by P.A. 76-1129, § 1, eff. Aug. 28, 1969.

* 32-1. § 32-1. Compounding a Crime.] (a) A person com-

pounds a crime when he receives or offers to another any

consideration for a promise not to prosecute or aid in

the prosecution of an offender.

(b) <A ‘person convicted of ‘compounding a crime shall

be fined not to exceed $500.

32-9. § 32-9. Tampering with Public Notice.] A person

_ who knowingly and without lawful authority alters, des-

troys, defaces, removes or conceals any public notice,

posted according to law, during the time for which the

notice was to remain posted, shall eas not to exceed

~ $200. +

50—31. Sale of products. in ‘obliterated containers—

Prohibition—Exception.] § 1. No person shall sell or of-

fer for sale any product, article or substance in a con:

4

29

tainer on which any statement of weight, quantity, qual-

ity, grade, ingredients or identification of the manufact-

urer, supplier or. processer is ‘obliterated by any other

labeling unless such other labeling correctly restates any

such obliterated statement.

This Section does. not apply to any obliteration which

‘is done in order to comply with Section 2 of this Act.

50—32. Utilization of used containers—Requisites.] § 2

No person shall utilize any -used container for the pur-..

pose of. sale of anv product, article or substance unless

the original marks of identification, weight. grade, quality

and quantity have first been obliterated...

50—33.. Penalty.] § 3. Whoever violates any provision

of this Act shall be fined not to exceed $1,000

70—1. Use by persons, firms or corporations—Prohibi-

tion.] § 1. No person, firm or corporation shall use the

official stationery or seal or a facsimile thereof. of any

State supported university, college’ or other institution

of higher education or any organization thereof unless

my BPProv ed in writing in advance by the university, college

Sor institution of higher education affected, for any pri-

vate promotional scheme wherein it is made to appear

that the organizatior or university, college or other in-

stitution of higher education is endorsing the private

promotional scheme. | |

70—2. Penalty.] § 2. Whosoever violates any provision

of this Act shall be fined not less than eau and not to

exceed $500.

82—2. Selling, renting or transfering to children—Pro-

hibition.] § 2, It is unlawful for any dealer to sell, lend,

rent, give or otherwise thansfer an air rifle to any per-.

son under the age of 13 years where the dealer knows

555 Bk NRE net sea payed eth

vw

30

or has cause to believe the person to be under 13 year

of age or where such dealer has failed to. make reason ‘

able inquiry relative to the age of such person and such ~

person is under 13 years of age. |.

82—7. Penalties.] § 7. Any dealer violating any provi-

sion of Section 2 of this Act is guilty of a misdemeanor

and shall be sentenced to pay a fine of not less than $25

nor more than $200 for each offense. .

Any person violating any other provision of this Act

shall upon conviction be sentenced to pay a fine not to

exceed $50. ahd costs of prosecution.. =