Howell v. Kincannon

• Decision Date: 17 February 1930
• Docket Number: Nos. 158, 159.,s. 158, 159.
• Citation: 24 S.W.2d 953
• Parties: HOWELL v. KINCANNON, Judge.
• Court: Arkansas Supreme Court

24 S.W.2d 953

HOWELL v. KINCANNON, Judge.

Nos. 158, 159.

Supreme Court of Arkansas.

February 17, 1930.

Petition for prohibition by W. H. Howell against J. O. Kincannon, Judge.

Prayer of writ granted.

BUTLER, J.

W. H. Howell was convicted in the Crawford circuit court at its March term, 1929, of murder in the first degree, sentenced to be executed, and confined at the penitentiary walls awaiting the date of his execution which has been set for the 28th day of February, 1930. On February 4, 1930, the Honorable J. O. Kincannon, judge of the Fifteenth judicial circuit, in which Crawford county is situated, issued a writ directed to S. L. Todhunter, warden of the State Penitentiary, commanding him to produce Howell in the Crawford circuit court on the 14th day of February, 1930, to the end that his present sanity or insanity be inquired into and determined. The said Howell, by his attorney, Harney M. McGehee, filed in this court his petition, alleging that the said J. O. Kincannon, as judge, and the Crawford circuit court were without authority to issue the aforesaid writ, and without jurisdiction to hear and determine the same, and prayed that the said judge be prohibited from proceeding further in this regard.

The question presented to this court for determination is, whether or not, after sentence has been pronounced, court adjourned, and the condemned individual transported to, and confined in, the penitentiary awaiting execution, has the court, at which the trial was held and which rendered judgment, authority to inquire into the question of the sanity or insanity of the condemned arising after judgment, or to make any orders in regard thereto? The authority sought to be prohibited is one which the courts have attempted to exercise but rarely, and this is the first time the question has come directly before this court. Our investigation of the text-writers and adjudicated cases discloses a singular paucity of authority on this question.

In Smoot on the Law of Insanity, § 455, it is said: "Where the defendant in a criminal trial is found to be insane subsequent to trial, verdict and sentence, the insanity has the effect of suspending further procedure. If it occurs subsequent to the trial and verdict, and before sentence, no sentence can be pronounced against the defendant while he is in such condition, not only because it cannot be carried out, but because he would not be able to understand the nature and import of the proceedings, and would not be able to intelligently answer whether there was any reason, as there might be, why judgment should not be pronounced."

Mr. Bishop, in the second edition of his work on Criminal Procedure, § 1369, in discussing the writ of error coram nobis, says: "With us, the cases to the question are few, yet sufficient; as, if unknown the defendant was insane at the trial, or if being in danger and trepidation from a mob he pleaded guilty and was sentenced to prison to save his life, or if being under eighteen he was sentenced to a punishment permissible only against an older person, this writ of error coram nobis is maintainable."

Mr. Blackstone says: "If a man in his sound memory commits a capital offense, and before his arraignment he become absolutely mad, he ought not by law to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed; the reason is because he can not advisedly plead to the indictment; and this holds as well in cases of treason as felony, even though the delinquent in his sound mind were examined, and confessed the offense before his arraignment. And if such person, after his plea and before his trial, become of nonsane memory, he shall not be tried; or, if after his trial he becomes of nonsane memory he shall not receive judgment; or, if after judgment he comes of nonsane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution." 4 Blackstone's Commentaries.

From the above authorities, it will be seen that the law, for the sake of humanity, early recognized the propriety of staying the execution of one condemned to death where it might be shown, after trial and judgment, that the defendant was either insane at the time of the trial, or had become insane thereafter, and as no method was pointed out to make this beneficial rule effective, the courts, because of the duty arising in such instances making it incumbent on rational beings, out of the dictates of humanity, to find a remedy, of necessity assumed the power to inquire into the sanity of a condemned person, and where it appeared upon investigation that the condemned was insane, revoked the judgment or stayed the execution. The power thus assumed was recognized to inhere in the courts to be exercised so long as the lawmaking power should fall to point out a method by which these questions might be heard and determined; but, whenever that voice should speak and declare a mode and method different, or place the authority to determine these questions elsewhere, the power of the courts would necessarily cease.

In the case of Adler v. State, 35 Ark. 517, 37 Am. Rep. 48, this court has held that a circuit judge has power, after the expiration of a term, to issue the writ of error coram nobis to reverse a judgment of conviction in a criminal case where it is shown that the defendant was insane at the time of the trial and that fact was not made known. This rule has been subsequently upheld by this court in a number of decisions, but we have failed to find any case where the writ was issued, or its issuance approved by the court in a case where the defendant became insane after the trial, judgment, and lapse of the term, except where the language was obiter. We may assume, however, that such right inhered in the court unless the Legislature had pointed out another and different remedy. It is insisted by the respondent that such power is now inherent in the circuit court, and he cites as authority to that position the cases of Johnson v. State, 97 Ark. 131, 133 S. W. 596, 598, and Ferguson v. Martineau, 115 Ark. 317, 171 S. W. 472, Ann. Cas. 1916E, 421. Upon a cursory examination, those cases appear to support that view. In Johnson v. State, supra, the court, quoting from the statute providing that when a defendant appears for judgment, he may, for cause against the judgment, show that he is insane and that the court, on reasonable grounds for believing that such is the case, may impanel a jury to determine the question, uses the following language: "If the insanity of the defendant be not brought to the attention of the court and inquired into before judgment is pronounced, the circuit judge may, after the expiration of the term, issue the writ of error coram nobis to set aside the judgment of conviction and suspend sentence in accordance with the statute above quoted." And in the case of Ferguson v. Martineau, supra, at page 326 of 115 Ark., 171 S. W. 472, 475, the court said: "It cannot be doubted therefore that, even in the absence of any statute upon the subject, the circuit court or judge thereof, in vacation, would have the inherent power to say that the execution of the judgment of that court was not in force upon a person who was insane at the time set for his execution. A writ upon proper application could be issued by the court or the judge thereof returnable to the court to inquire into the alleged insanity of the defendant at the time set for the execution, to the end that the sentence of the law might not be carried out if it were determined by a jury impaneled for the purpose that the defendant were insane."

Upon further investigation of these cases, however, it will be seen that this question was not before the court. In Johnson v. State, the only question before the court was an alleged error in the selection of the jury and the only defense made at the trial was that of insanity. The court there said: "After a careful examination of the record, we are of the opinion that there is no error, and that the judgment should be affirmed," but, on the suggestion that since the judgment and verdict was rendered the defendant had been pronounced insane and removed from the jail to the county hospital, the court further said: "That, however, does not affect the adjudication of this court affirming the judgment of the trial court where no error is found in the record of the trial. Appellant pleaded insanity as a defense to the crime, but no plea of present insanity was interposed at the trial nor was there any suggestion of present insanity as a reason why judgment should not be pronounced on the verdict of the jury. There is no provision in the statute for suspending proceedings in this court on account of appellant's insanity, though ample protection is provided in that respect in the lower court. The circuit judge has the power to issue the writ of error coram nobis to set aside a judgment of conviction when it appears that the defendant was insane at the time of the trial and the fact was not made known at the trial."

The question before the court in the instant case was not remotely connected or involved in the case of Johnson v. State, supra, so that the language there used by the learned chief justice as above quoted is clearly referable to the question of procedure, where insanity exists before the judgment is pronounced. In the case of Ferguson v. Martineau, supra, the only question before the court was the jurisdiction of a court of equity to restrain by injunction the execution of a criminal, under judgment, to enable the probate court to inquire into the sanity of the condemned, and it was held that such court was without jurisdiction, and that a writ of prohibition was the proper remedy to prevent the usurpation of jurisdiction. Therefore, the language above quoted was obiter dictum, and, while not carefully chosen, it is fairly inferable from the cases cited (Adler v....