Fletcher v. State
Decision Date | 22 May 1939 |
Docket Number | 4125 |
Citation | 128 S.W.2d 997,198 Ark. 376 |
Parties | FLETCHER v. STATE |
Court | Arkansas Supreme Court |
Appeal from Arkansas Circuit Court, Southern District; W. J Waggoner, Judge; affirmed.
Judgment affirmed.
Chris Carpenter, for appellant.
Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.
OPINION
Appellant was charged by information with the crime of grand larceny for the stealing of "one yellow jersey heifer, past two years old, and roan calf, with white spots in flank, same being the property of F. B. Hoover." He was tried and found guilty on January 16, 1939, his punishment being fixed at one year in the penitentiary, and judgment was accordingly entered. On the same day he filed his motion for a new trial which was overruled, and he prayed and was granted an appeal to this court, sixty days being given to file a bill of exceptions. The transcript was filed in this court on March 15, 1939, and appellant's brief was filed twelve days later, on March 27th.
On April 25, during the January term of the Arkansas circuit court, southern district, but at an adjourned day thereof the court made an order which recited the facts above stated and continued as follows:
The record has been amended by stipulation to include said order. The question naturally arises as to the validity of said order although not raised by the briefs of the parties. It is a novel situation, but not entirely new to this jurisdiction. The question is: Did the court have jurisdiction to make the order at the same term, but after the appeal had been perfected in this court? We feel compelled to answer the question in the negative, because of prior decisions of this court which were grounded on good authority and sound reasoning. In Freeman v. State, 158 Ark. 262, 249 S.W. 582, 250 S.W. 522, a case in point, Freeman was convicted of grand larceny and sentenced to a year in the penitentiary on October 20, 1922, in the Sebastian circuit court. He appealed promptly to this court and the judgment was affirmed on January 27, 1923. Thereafter, on February 13, 1923, he moved the trial court to modify the judgment so as to sentence him to the reform school alleging that he was a minor 16 years of age at the time of trial. The court overruled the motion and he again appealed to this court. The case was again affirmed. On petition for re-hearing, he suggested a diminution of the original record and asked for certiorari to the clerk of the trial court directing him to certify to this court a transcript of the record showing the date of adjournment of the term of court at which he was convicted and sentenced, the object no doubt being to show that the term of the trial court had not adjourned when his original appeal was taken. His motion for certiorari was denied. The court said:
Another case in point is Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005, 44 A. L. R. 1193. Boyles plead guilty to manufacturing mash and he was sentenced to a year in the penitentiary on July 22, 1925, a regular day of the July term of the Perry circuit court. He shortly thereafter began serving his sentence. On December 17, 1925, an adjourned day of the same term, the trial court made this order: The penitentiary officials refused to obey this order and to release Boyles, and on December 22, 1925, he brought habeas corpus against them to be released. The Pulaski circuit court granted the writ and the Board appealed. This court held that where a defendant is convicted, enters the penitentiary in execution of the judgment, and serves a part of his sentence, the trial court has no jurisdiction at the same term of court to set aside the sentence and direct the case to be continued, as it would be in effect putting him twice in jeopardy for the same offense. In doing so the court used this language: "This holding is a recognition of the rule, well established, that, where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.
So, in this State, there are two well known exceptions to the rule that the court has general power over its judgments during the term in which they are first rendered. One is that when an appeal has been perfected in this court and the other is that the defendant has served a portion of his sentence. In either case the trial court is without jurisdiction to modify its judgment, "except to correct its judgment to make it speak the truth in aid of the jurisdiction of the appellate court." There can be no such thing as two courts having jurisdiction of the same case, involving the same subject-matter, at the same time.
We, therefore, hold that the order of April 25, 1939, was ineffective because the case was then pending on appeal in this court.
Coming now to the merits of the appeal, two questions are raised. The first is that there is a variance between the information and the proof. The second is the sufficiency of the evidence to sustain the verdict.
Appellant was charged with stealing two animals--a "yellow jersey heifer, past two years-old" and a "roan calf, with white spots in flank." It appears to us that there can be no question as to variance between the information and proof as regards the calf, because appellant was found with it in his possession and delivered it to Mr. Hoover, the owner, when he came and identified it as his calf. The cow which was the mother of this calf was found dead, about three quarters of a mile from appellant's house. The skin on the head of the dead cow had been removed and the ears were cut off. She had been dead about three days. Mr. Hoover identified her by her horns. Another witness, Hal Collier, identified the cow and calf as the...
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