Barwick v. State

• Decision Date: 17 February 1913
• Parties: BARWICK v. STATE
• Court: Arkansas Supreme Court

153 S.W. 1106

107 Ark. 115

BARWICK v. STATE

Supreme Court of Arkansas

February 17, 1913

Appeal from Craighead Circuit Court, Jonesboro District; W. J Driver, Judge; affirmed.

Judgment affirmed.

Hawthorne & Hawthorne, for appellant.

1. Unlike the Joiner case, 94 Ark. 198, the record in this case shows that the plea of appellant was entered upon condition. It is immaterial that the judgment of February, 1907, was entered by appellant's consent. The court had no power at the November term, 1912, to impose any part of a sentence upon appellant under the order rendered at the February term 1907. 144 S.W. 208. "The entire sentence must be pronounced at one time, not in parcels." 1 Bishop's New Criminal Procedure, § 1291; 61 Mich. 110.

2. The cause became abandoned and discontinued. A discontinuance results in a cause whenever for any reason there is in connection with it and the court records a lapse, unless such lapse is the fault of the defendant, 20 Ala. 9; 47 Ala. 675; 67 Ky. 427; 64 Ind. 371; 48 N.E. 261; Black's Law Dict 818.

William L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The plea was unqualified. This case is controlled by Joiner v. State, 94 Ark. 108. The power to impose a partial judgment at one term and another part at a subsequent term is not involved here. Costs are not a part of the judgment for a fine. 151 S.W. 1023; 61 Ark. 17; 12 Ark. 123.

2. There was no discontinuance. It was not incumbent upon the court to have the case upon the docket at each term in order to avoid a discontinuance, but, even if that were necessary, there is nothing in the record to show that the case was not so docketed.

OPINION

MCCULLOCH, C. J.

An indictment was returned by the grand jury of Craighead County, Jonesboro District, at the October term, 1906, against appellant, Ben Barwick, charging him with the offense of selling intoxicating liquor in violation of law. At the next term of the court, which was the February term, 1907, appellant entered a plea of guilty to the charge and the court, after receiving the plea and noting the same upon the record, caused an order to be entered "that this cause be continued; that the defendant pay all costs herein at once, and that the fine be imposed at the pleasure of the court." No objection appears to have been made by appellant to this order of the court, and no further proceedings were had until the November, 1912, term of the court, when the case was called and the court entered judgment against the defendant, upon his plea of guilty, for a fine in the sum of $ 100. From that judgment, he has prosecuted an appeal.

Appellant's plea of guilty was entered unconditionally, therefore, the case does not fall within the ruling of this court in Wolfe v. State, 102 Ark. 295, 144 S.W. 208.

We held in the case of Joiner v. State, 94 Ark. 198, 126 S.W. 723, that "upon a plea of guilty entered at one term of court, judgment may be entered at a subsequent term." That case is, therefore, conclusive of the question raised now as to the power of the court to render judgment at a subsequent term.

It is urged, however, that the court had no power to adjudge the penalty by piecemeal, and that in as much as a judgment for costs was rendered that exhausted the court's power to render any further judgment. The award of costs was a mere incident (Villines v. State, 105 Ark. 471 151 S.W. 1023), and it may well be doubted whether the costs could be collected until final judgment was rendered against appellant. The record of ...