Beard v. State

• Decision Date: 04 June 1906
• Citation: 95 S.W. 995
• Parties: BEARD v. STATE.
• Court: Arkansas Supreme Court

95 S.W. 995

BEARD v. STATE.

Supreme Court of Arkansas.

June 4, 1906.

On Rehearing, July 23, 1906.

Error to Circuit Court, Phillips County; Hance N. Hutton, Judge.

Govan Beard was convicted of rape, and he appeals. Affirmed.

The defendant, Govan Beard, was arrested upon the charge of having committed the crime of rape, and was indicted, tried, and convicted at a special term of the circuit court called by the judge of the circuit for the purpose of trying the case, and was sentenced to be hanged. No objection was made below to any step in the proceedings, no demurrer to the indictment, motion for new trial nor motion in arrest of the judgment was filed. After verdict and judgment a writ of error was issued by the clerk of the Supreme Court.

The order made by the circuit judge for holding a special term of court was as follows: "To James R. Bush, Clerk of the circuit court of Phillips county, Arkansas: It is hereby ordered that a special term of the circuit court of Phillips county be had and held on Thursday, the 4th day of January, 1906, for the trial of one Govan Beard, now held in custody, charged with a capital offense. You are furthermore ordered and directed to issue a venire facias to the sheriff of Phillips county, requiring him to summon a good and lawful grand jury to attend such special term of circuit court. You are furthermore ordered and directed to issue a notice of the holding of said special term, to the prosecuting attorney of the First judicial circuit, directed to the sheriff of Woodruff county, to the end that the said notice may be served at least ten days before the commencement of said special term. You are furthermore directed to spread this order at large on the records of the Phillips circuit court. Given under my hand as judge of said court in chambers at the city of Marianna, on this 22d day of December, 1905. [Signed] H. N. Hutton, Judge of the First Judicial Circuit of Arkansas." Since the cause came here on writ of error, the circuit court at the regular May term, 1906, has made an order correcting by nunc pro tunc entry the original order made by the judge in vacation, so as to recite the fact that the defendant was confined in jail at the time the special term was ordered. This additional order of the court has been brought here on writ of certiorari.

The indictment upon which the defendant was tried and convicted is as follows: "The grand jury of Phillips county, in the name and by the authority of the state of Arkansas, accuse Govan Beard of the crime of rape, committed as follows, to wit: The said Govan Beard, in the county and state aforesaid, on the 22d day of December, A. D. 1905, then and there in and upon the body of Annie McAble, a female, unlawfully, willfully, feloniously, forcibly, and with his malice aforethought did make and assault, and her, the said Annie McAble, unlawfully, willfully, feloniously, forcibly, and of his malice aforethought did ravish and carnally know, against the peace and dignity of the state of Arkansas. [Signed] P. R. Andrews, Prosecuting Attorney."

Baldy Vinson, for appellant. Robert L. Rogers, Atty. Gen., for the State.

McCULLOCH, J. (after stating the facts).

1. The jurisdiction of the court to proceed in the cause is challenged on the ground that the order of the circuit judge calling the special term of the court does not conform to the requirement of the statute in that it fails to recite that the defendant was in jail at the time. The order recites that the defendant was "held in custody charged with a capital offense." The statute authorizing the holding of special terms of the circuit court reads as follows: "The judge of any circuit court may at any time hold a special term for the trial of persons confined in jail, by making out a written order to that effect and transmitting it to the clerk, who shall enter the same on the records of the court." Kirby's Dig. § 1532. It has been held by this court that every fact, according to the strict terms of the statute, necessary to give authority to hold a special term of the court must be made to appear of record, otherwise the jurisdiction of the court will fall. Dunn v. State, 2 Ark. 230, 35 Am. Dec. 54; Pulaski County v. Lincoln, 9 Ark. 326. The order of the judge must, therefore, recite every jurisdictional fact, because in no other way can those facts appear upon the record. The particular question which we have to determine is whether or not the words "now held in custody charged with a capital offense" necessarily mean that the defendant was confined in jail, for, under no other construction, can the order be taken as having been in conformity with the statute. It is not essential that the exact words of the statute be used — words of like import or meaning are sufficient. We think that the words used necessarily mean that the defendant was confined in jail. The law does not recognize any other method of holding a prisoner in custody charged with crime than by confinement in jail until examination or trial. The prime object of the statute providing for the holding of special terms of the circuit court is to afford speedy trials to persons deprived of their liberty, and an officer could not deprive a prisoner of that right by holding him in custody without actually confining him in jail. We hold that the order made by the circuit judge was sufficient to give the court jurisdiction at the special term, and it is unnecessary to pass upon the question of the power of the court at a subsequent term to amend, by nunc pro tunc entry, the order made by the judge in vacation.

2. It is next contended that the indictment does not charge an offense, and that the conviction thereon cannot be sustained because it fails to allege that the act of carnal knowledge was committed by the accused against the will of the female. If the sufficiency of the indictment had been questioned by demurrer we are not prepared to say that the demurrer should not have been sustained. We do not decide that question. The indictment was not questioned either by demurrer or by motion in arrest of judgment, and we are confronted only with the proposition whether or not the alleged defect can be taken advantage of for the first time after trial and verdict and in this court on appeal or writ of error. The question is not free from doubt, but the weight of authority seems to sustain the view that where an indictment omits an allegation of some essential element of the crime — in other words if it fails to charge a public offense it is void, and can be questioned for the first time on appeal without a demurrer or motion in arrest of judgment having been interposed. 12 Cyc. pp. 811, 812, cases cited. But when the defect is one of form or of imperfect expression merely, it cannot be taken advantage of on appeal for the first time. In other words, if the indictment imperfectly charges a public offense, the defect must be taken advantage of by demurrer or motion to quash, but if it omits entirely an allegation of some essential element of the crime charged so that it can be said that no offense is charged, then it can be taken advantage of at any time. 1 Bishop, Crim. Proc. § 707a; Clark, Crim. Proc. § 118; Heyman v. Reg., 8 L. R. Q. B. 102; Brodla...