Howell v. Kincannon

• Decision Date: 17 February 1930
• Docket Number: 159,158
• Citation: 24 S.W.2d 953,181 Ark. 58
• Parties: HOWELL v. KINCANNON
• Court: Arkansas Supreme Court

24 S.W.2d 953

181 Ark. 58

HOWELL v. KINCANNON

No. 159, 158

Supreme Court of Arkansas

February 17, 1930

Prohibition to Crawford Circuit Court; J. O. Kincannon Judge; writ granted.

Writ of prohibition granted.

Harney M. McGehee, for appellant.

Dave Partain and R. S. Wilson, for appellee.

BUTLER J. HART, C. J. concurs.

OPINION

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 15th 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 textwriters 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 offence, and before his arraignment he became mad, he ought not to be arraigned for it; because he cannot advisedly plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced, and if, after judgment, he becomes of nonsane memory, his execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution." 4 Blackstone, Commentaries. Cooley's Ed., page 24.

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 law-making power should fail 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, 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 the 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, 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 prisoner 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 empaneled 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 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...