Reece v. State

• Decision Date: 03 May 1915
• Docket Number: 347
• Citation: 176 S.W. 165,118 Ark. 310
• Parties: REECE v. STATE
• Court: Arkansas Supreme Court

176 S.W. 165

118 Ark. 310

REECE v. STATE

No. 347

Supreme Court of Arkansas

May 3, 1915

Appeal from Mississippi Circuit Court, Chickasawba District; W. J Driver, Judge; reversed.

Judgment reversed and cause remanded.

W D. Gravette and S. R. Simpson, for appellant.

1. The special term of court was not legally organized. It is essential to the legal organization of a special term of the circuit court that the order therefor state (1) that there is some person or persons confined in jail, naming him or them who may be tried upon some criminal charge; (2) that no other court must intervene; (3) that it must not be within twenty days of a regular term; (4) that the order be made out by the judge and transmitted to the clerk and be by him entered of record at least ten days before the appointed day. To give jurisdiction to the court, all these requirements must appear from the order made by the circuit judge, and not otherwise and at such special term, no other person or persons than the one or more named in the order, and who was or were confined in jail at the time the order was made, can be tried. 2 Ark. 230; 9 Ark. 326; 29 Ark. 170; 45 Ark. 453; 79 Ark. 297; 100 Ark. 373; 103 Ark. 450, and cases cited.

2. The status of the case is not changed by the amendment of the record nunc pro tunc, which was unauthorized. The purpose of an amendment of a record by nunc pro tunc order is to make it speak the truth, and a court can not exercise this power to make the record speak what it should have spoken, but in fact did not speak. 87 Ark. 441; 35 Ark. 278; 31 Ark. 194; 40 Ark. 224; 78 Ark. 364; 92 Ark. 305; 72 Ark. 22; 55 Ark. 30; 93 Ark. 237; 99 Ark. 435; 93 Ark. 558.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

The order for a special term contains the proper averments, and notice thereof was properly served. As to the objection that the appellant was not named in the order, it is sufficient to say that the order prepared by the judge followed the language of the statute.

OPINION

MCCULLOCH, C. J.

A grand jury impaneled at a special term of the circuit court of Mississippi County, Chickasawba District, held on August 24, 1914, returned an indictment against appellant, E. Reece, for the crime of murder in the first degree, and at the next regular term of said court appellant was tried and convicted of murder in the second degree. The validity of the indictment was and is challenged on the ground that the special term of court, and the grand jury which was empaneled at that term, was illegal because not called by the circuit judge in the manner prescribed by the statute. The order of the circuit judge was directed to the clerk, and is in the following form:

"Whereas, the undersigned judge of the circuit court for the Second Judicial Circuit for the State of Arkansas, being informed that a large number of persons are confined in the jail house, for said district, in said county, and State, charged with crime and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore. Now, therefore, you are hereby directed to issue a venire facias to the sheriff of Mississippi County, requiring him to summon a grand jury to attend a special term of the circuit court in the second division, to be holden at the courthouse in the city of Blytheville, in said Chickasawba District of Mississippi County, Arkansas, on Monday, the 24th day of August, 1914, the same being a date at which no regular or adjourned session of the circuit court in the second division thereof is in session, and said date not being within twenty days of any regular term of said court in said division."

It will be observed in the first place that the instrument prepared and signed by the judge does not in express terms order that a special term be held on the date named. According to the express language used, it only recites the necessity for holding a special term of the court for the purpose of trying persons confined in jail, and directs the clerk to issue a venire facias to the sheriff requiring him to summon a grand jury to attend a special term to be holden at the courthouse on the day named.

The first point made against the legality of the proceedings is that there was no special term called. Our statute on this subject is a part of the Revised Statutes and was copied literally from a Missouri statute, and the Supreme Court of Missouri, in the case of Mary v. State, 5 Mo. 71, decided in 1837, which was before the statute was adopted in this State, held that an order substantially in the same language as the one now under consideration was sufficient to amount to a direction to hold the term of court. However, we need not discuss that point further or decide it in the present case, as we have reached a conclusion disposing of the case on another point.

The principal contention is that the form of the order is insufficient to give vitality to the special term of court for the reason that it fails to designate the accused persons who were to be indicted and tried. The order as will be seen from its inspection, merely recites that the judge is "informed that a large number of persons are confined in the jail house * * * charged with crime and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore." The order does not designate any individual nor does it expressly direct that all persons confined in jail are to be tried at a special term of court. We have decided that the order of the circuit judge for a special term of the court to try criminal cases is jurisdictional and must be strictly complied with in order to give authority to indict or try criminals at that term. In Beard v. State, 79 Ark. 293, 95 S.W. 995, we said: "It has been held by this court that every fact, according to the strict terms of the statute, must be made to appear of record, otherwise the jurisdiction of the court will fail. Dunn v. State, 2 Ark. 229; Pulaski County v. Lincoln, 9 Ark. 320. The order of the judge must therefore...