Bell v. State

• Citation: 180 S.W. 186
• Decision Date: 08 November 1915
• Docket Number: (No. 216.)
• Parties: BELL v. STATE.
• Court: Supreme Court of Arkansas

180 S.W. 186

BELL v. STATE.

(No. 216.)

Supreme Court of Arkansas.

November 8, 1915.

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Appeal from Circuit Court, Conway County; M. L. Davis, Judge.

Sam Bell was convicted of murder in the first degree, and he appeals. Judgment reversed.

On the 5th of May, 1915, Hon. M. L. Davis, judge of the Fifth judicial circuit, called a special term of the Conway circuit court to meet on the 18th of May. The call recited that Sam Bell was accused of murder and confined in jail, and that the call was made for the purpose of investigating and disposing of the charge. The special term convened on the day ordered in the call, and a grand jury was impaneled, which returned four separate indictments against Bell, charging him with the crime of murder in the first degree by shooting different persons. Among the indictments was one charging him with the murder of Eard Bearden, and also the present indictment, charging him with the killing of Mrs. Abbie Bearden by shooting her. The indictment was couched in the usual terms of an indictment for murder in the first degree, and no objection is urged to its sufficiency so far as the form of the indictment is concerned. The special term adjourned to and reconvened on June 1st. The appellant filed a plea of former conviction, setting up that at the present special term he had been indicted for the murder of Eard Bearden and Mrs. Abbie Bearden; that he was tried and convicted of murder in the first degree for the killing of Eard Bearden, and that the state was then proceeding to try him for the murder of Mrs. Abbie Bearden; that the killing of the two persons was but one transaction and constituted one offense; that the proof to sustain one would sustain the other; that his conviction of the kiling of Eard Bearden was also tantamount to convicting him of the killing of Abbie Bearden, for which he was about to be tried. The plea of former conviction was overruled. Appellant moved to quash the indictment, setting up that the record of the court did not show that the order calling the special term was entered on the record of the court 10 days before the meeting of the special term. The motion was overruled. Appellant was put upon his trial, and the jury returned a verdict of murder in the first degree. Appellant filed his motion for a new trial, which was overruled, and judgment sentencing him to be electrocuted was rendered, and he duly prosecutes this appeal. Other facts will be stated in the opinion. Appellant urges numerous grounds for reversal. Such of these as we deem necessary we shall consider in the opinion, and, for the most part, in the order presented by appellant's counsel.

Mehaffy, Reid & Mehaffy, of Little Rock, and Sellers & Sellers, of Morrilton, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above).

The appellant contends that the judgment sentencing him to be electrocuted is void under the act of March 20, 1915, which is Act No. 187 of the Acts of 1915, at page 774. The act is entitled:

"An act giving the jury the right to render a verdict of life imprisonment in the state penitentiary in all cases where the punishment is now death by law."

The act provides:

"Section 1. That the jury shall have the right, in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the state penitentiary at hard labor.

"Sec. 2. That all laws and parts of laws in conflict herewith are hereby repealed."

At the time of the passage of this act the only punishment for murder in the first degree was death by electrocution. Kirby's Digest, § 1775; Act 55, Acts of 1913. Prior to the passage of the act under review, if the jury returned a verdict of guilty of murder in the first degree, the exclusive punishment as the result of such verdict was death. The act under consideration conferred upon the jury a right that it did not have before, to wit, the right to render a verdict of life imprisonment in all cases where the punishment under the then existing law was death. But this act was not intended to provide an exclusive method of punishment in those cases where, under the then existing law, the punishment was death.

Appellant contends that the act should be construed as if it read:

"The jury shall, in all cases where the punishment is now death by law, render a verdict of life imprisonment in the state penitentiary at hard labor."

But this is not a correct version of the act, for it places upon it a meaning entirely different from that conveyed by the language actually used. Saying that the jury "shall have the right to render a verdict" is quite a different thing from saying that the jury "shall render a verdict." The very language "shall have the right" denotes that the Legislature intended to confer upon the jury the option or privilege of rendering a verdict; whereas saying that the jury "shall" render such verdict denotes that they would not have any option. Such is the plain meaning as gathered from the language used. The manifest purpose of the Legislature was not to abolish capital punishment, but to provide also another method of punishment if the jury so ordained. If the Legislature had intended to abolish capital punishment, the title of the act doubtless would have been "An act to abolish capital punishment," etc., and in the body of the act the Legislature would have made it compulsory on the jury to return a verdict fixing the punishment at imprisonment in the state penitentiary. That the Legislature would have so enacted, if such had been their purpose, clearly appears by a bill that was introduced at the same session of the Legislature to abolish capital punishment, etc., which bill it did not enact into law, but, on the contrary, enacted the present statute. Senate Bill 130, by Senator Owens. To ascertain the Legislature's intention, courts may look to the legislative proceedings as set forth in their journals. See Hartford Fire Ins. Co. v. State, 76 Ark. 303-309, 89 S. W. 42, and cases cited.

Repeals by implication are not favored, and the present law imposing capital punishment for the commission of certain offenses should not be held to be repealed, except by a law in express terms to that effect, or by necessary implication, as where the statutes are in invincible conflict, or where the later statute has covered the whole subject-matter of the prior law. As we construe it, the statute under review has no reference whatever to the abolition of capital punishment.

2. Section 12, article 7, of our Constitution, provides:

"The circuit courts shall hold their terms in each county at such times and places as are, or may be, prescribed by law."

Appellant contends that under this section of the Constitution there is no law authorizing the holding of special terms of the circuit court. At the time of the adoption of the Constitution of 1874 the law provided that "the judge of any circuit court may at any time hold a special term," under certain circumstances, and provided the methods for convening such special terms. The statute prescribing the method for convening these special terms is a part of the Revised Statutes, and was a part of the act approved February 28, 1838, and has been redigested in the various digests since the Revised Statutes, and is found in chapter 47, in sections 1532 to 1537, inclusive, of Kirby's Digest.

Section 1 of the Schedule of our Constitution provides:

"All laws now in force which are not in conflict or inconsistent with this Constitution shall continue in force until amended or repealed by the General Assembly."

These provisions, providing for the holding of special terms, have not been repealed or amended by the General Assembly, and hence, by the express provisions of the Constitution, they continue in force to this day. They have been recognized as existing law in various decisions of this court, beginning as early as Dunn v. State, 2 Ark. 230, 35 Am. Dec. 54 (a decision under the Constitution of 1836), and continuing on down, under our various Constitutions, to the present time. Pulaski County v. Lincoln, 9 Ark. 320; Crain v. State, 45 Ark. 450; State ex rel. Butler v. Williams, 48 Ark. 227, 2 S. W. 843; Hamilton v. State, 62 Ark. 543, 36 S. W. 1054; Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409; State ex rel. v. Stevenson, 89 Ark. 31-34, 116 S. W. 202; Hill v. State, 100 Ark. 373, 140 S. W. 576; Reece v. State, 176 S. W. 165.

As was held in Nelson v. State, 19 S. D. 214, 102 N. W. 885, 886, the distinction between terms fixed by the Legislature and terms ordered by the judges, or what may be designated as regular and special terms, is discernible in the history of our territorial and state legislation. See Harriman v. State, 2 G. Greene (Iowa) 270-275. Special terms are as much a part of our judicial system, under the Constitution, as are the regular terms. Special terms held at the times and places ordered by the circuit judges, under the above sections, are in strict accord with the requirements of the Constitution, for when held under the above sections they are held at such times and places as were, at the time of the adoption of the Constitution, prescribed by law. There is nothing in the prior Constitutions, and there is nothing in the present organic law, that inhibits the Legislature from authorizing circuit judges to prescribe or fix the times and places for holding special terms of circuit courts, and when these times and places are fixed by the circuit judges in the manner provided by the statute such times and places are as much prescribed by law as if the Legislature itself had so fixed the time.

At the time the framers of our present Constitution convened, they were familiar, of course, with the existing statutes and decisions. Special terms had then become so firmly implanted in our law that, if the...