Smith v. State
| Decision Date | 27 May 1940 |
| Docket Number | 4168 |
| Parties | SMITH v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sevier Circuit Court; Minor W. Milwee, Judge; affirmed.
Affirmed.
Wesley Howard and Geo. R. Steel, for appellant.
Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.
OPINION
Appellant was tried and convicted of burglary and grand larceny in the circuit court of Sevier county, and the judgment of conviction was affirmed by this court on appeal, 199 Ark. 900, 136 S.W.2d 673. A petition for rehearing was denied.
Application was made to this court for permission to petition the circuit court in which Smith had been convicted for a writ of error coram nobis. The right so to proceed was granted.
The petition thereafter filed in the Sevier circuit court alleged defendant's innocence of the crimes for which he had been convicted and pleaded, by way of establishing his lack of guilt, the fact that the principal witness against him had recanted and in addition that two ex-convicts of Texas had, since his arrest and conviction, confessed that they had burglarized the depot at Gillham, Arkansas, and stolen the particular items of property for the theft of which the appellant had been convicted.
The two men who confessed the particular burglary and theft had been arrested by two post office inspectors, Mr. A. O. Curry and Mrs. W. G. McMillan, who furnished prepared statements taken from their prisoners with an explanatory letter. Since these arresting officers no doubt believed their prisoners guilty, it may be conceded their statements and letters made part of appellant's petition were, at least, very strongly persuasive. These were part of the petition.
The prosecuting attorney filed a demurrer to appellant's petition, whereupon the trial court dismissed appellant's plea. From this order is the appeal.
Counsel have kindly furnished a more detailed statement of the issues presented and considered in the trial court. It was the contention of the state that appellant's petition was in effect, merely, (1) a motion for a new trial upon the grounds of newly discovered evidence, and, (2) the trial court was without jurisdiction to hear and grant the relief sought, for the reason the term of court at which appellant had been convicted had lapsed.
It is somewhat grudgingly admitted by appellant that the provisions of the statutes providing for a new trial in civil cases on the grounds of newly discovered evidence, Pope's Digest, § 8246, can not be invoked here. Nor is there any similar provision in the law of criminal procedure. It is somewhat gently hinted that we should, by judicial fiat, bridge this chasm of deficiency in the law of criminal procedure. The answer must be that such rights are statutory, purely, and if there is a legal hiatus in such procedure, the remedy is legislative.
Appellant cites an announcement from State v Hudspeth, 191 Ark. 963, 88 S.W.2d 858, as follows: ...
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