State v. Martineau
| Decision Date | 20 June 1921 |
| Docket Number | (No. 52.) |
| Citation | 232 S.W. 609 |
| Parties | STATE ex rel. ATTORNEY GENERAL et al. v. MARTINEAU, Chancellor. |
| Court | Arkansas Supreme Court |
J. S. Utley, Atty. Gen., Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for appellants.
E. L. McHaney, Scipio A. Jones, and J. H. Carmichael, all of Little Rock, for appellee.
Frank Hicks, Frank Moore, Ed Hicks, J. E. Knox, Ed Coleman, and Paul Hall, who had previously been indicted and convicted of the crime of murder, and who were being confined in the state penitentiary awaiting execution of the death sentences, filed a petition for habeas corpus in the chancery court of Pulaski county, praying that they be discharged from custody and from said judgments of conviction. This petition was filed and presented to the chancellor on June 8, 1921, who immediately ordered the issuance of a writ of habeas corpus directed to the keeper of the penitentiary, and the chancellor also ordered the issuance of a writ of injunction restraining the said keeper from executing the death sentences upon said petitioners in accordance with said judgments of conviction and the proclamation of the Governor fixing the date of executions. The writs were issued and made returnable for hearing before the chancery court at 2 o'clock p. m. on June 10, 1921, and E. H. Dempsey, keeper of the penitentiary, was made respondent in the proceeding, and copies of the proceedings and process were served on him and on the Attorney General, who appeared before the chancellor on behalf of the state and the keeper of the penitentiary, and made objections challenging the jurisdiction of the chancery court.
A petition has been filed here praying for a writ of prohibition to restrain the chancery court from proceeding in the matter, alleging that it is not within the jurisdiction of that court. The chancery court postponed further hearing on the matter until a decision of this court could be rendered as to the jurisdiction of that court. The petitioners in the proceeding below, as well as the chancellor, have responded to the present petition, and the former seek to uphold the jurisdiction of the chancery court. Relators presented the present petition to the justices of the Supreme Court on June 9, 1921, for a temporary writ of prohibition pending the presentation of the matter to the court in session, but on objection being made by respondents to the hearing at that time it was postponed to the first session of the court on Monday, June 13, 1921, and the cause was set down for hearing on that day.
On the outset of the hearing by this court respondents were opposed to proceeding at this time on the ground that the notice was not given for the length of time required by statute. There is a statute regulating the practice on applications for mandamus and prohibition, which provides that 10 days' notice of an application shall be given. Crawford & Moses' Digest, §§ 6251 and 7023. This statute manifestly applies only to proceedings of this nature in court of original jurisdiction. It defines a writ of mandamus, treated in the chapter "as an order of a court of competent and original jurisdiction," and defines a writ of prohibition as "an order from a circuit court to an inferior court of limited jurisdiction prohibiting it from proceeding in a matter out of its jurisdiction." Crawford v. Moses' Digest, §§ 7021, 7022. This does not apply to proceedings in the Supreme Court where jurisdiction is derived from the Constitution, but there is no statute regulating the practice. Prairie C. C. M. Co. v. Kittrell, 107 Ark. 361, 155 S. W. 496.
This leaves the matter of notice as one to be fixed by rules of this court. This seems to have been the thought in the mind of the court in deciding the case of Ex parte Tucker, 25 Ark. 567, which arose shortly after the adoption of the Civil Code containing the provision referred to in regard to notice. In the opinion it was said, following the common-law practice, that a writ of prohibition should not be "issued, unless an opportunity be offered those sought to be prohibited of showing cause against it," but no reference was made to the statute requiring notice. There is no established rule of this court on the subject, and it is a question to be determined in each instance whether reasonable notice has been given. In the present case we concluded that the notice was, under the circumstances, reasonable, and the request for further postponement was denied. In fact, there was no contention that the notice was unreasonable, if we concluded that the statute referred to did not apply.
Again it is urged that the remedy should not be awarded under the writ of prohibition for the reason that proper objection had not been made to and overruled by the chancellor to the exercise of jurisdiction. The rule has often been recognized in decisions of this court that prohibition is not available until objection to the wrongful attempt to exercise jurisdiction has been raised in the inferior tribunal and overruled; but exceptions to that rule have been found. Reese v. Steel, 73 Ark. 66, 83 S. W. 335, 1136; Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59.
The state of the matter as presented here is this: The chancery court has already exercised jurisdiction by issuing an injunction staying execution of the judgments in the criminal cases and has set the cause for final hearing. Relators made objection to the exercise of jurisdiction, but the chancery court declined to decide either the question of jurisdiction or the merits of the cause until after this court determines the question of jurisdiction. The chancery court on June 10 postponed the hearing indefinitely until this court decides the present case. The effect of the court's attitude is therefore to retain jurisdiction and to further exercise it in due time, unless prohibited by this court. The case, therefore, falls within the exceptions stated in Monette Road Imp. Dist. v. Dudley, supra. Relators are now under restraint until the writ of injunction issued by the chancery court in the attempt to exercise jurisdiction which it is alleged that court did not rightfully possess, and the failure of the court on the request of the relators to relinquish jurisdiction is tantamount to overruling the objection.
This brings us to the consideration of the main question in the case, whether or not, upon the allegations of the petition filed below the chancery court possesses jurisdiction, either by injunction or under the writ of habeas corpus, to review the proceedings in which the accused respondents were convicted of the crime of murder, or to interfere with the judgments of conviction. The facts are stated in detail and at great length in the petition filed, and include the record of the proceedings in which the accused respondents were indicted, tried, and convicted, the record of the appeal to this court, the judgment of affirmance, and the opinion of this court, and also the record of the application to the Supreme Court of the United States for a writ of certiorari to review the proceedings.
The accused respondents were indicted by the grand jury of Phillips county of the crime of murder in the first degree, alleged to have been committed by shooting one Clinton Lee. It is charged in the indictment and was proved at the trial that the killing of Lee occurred on October 1, 1919, and the indictments were returned by the grand jury on October 29, 1919, and on the 3d day of November, 1919, the trials occurred, Frank Hicks was tried separately and the other five were tried together, and each trial resulted in a conviction of murder in the first degree. When the accused were brought into court and arraigned, they had no attorneys to represent them, and the court appointed counsel, certain members of the Phillips county bar, who represented the accused throughout the trials. There were no exceptions saved during the progress of the trials, but the records show that counsel for the accused cross-examined all of the state's witnesses at length.
Before the final adjournment of the circuit court for the term, and within the time allowed by law, the accused or their friends employed to represent them the counsel who now appear in their behalf in the present proceedings, and they filed a motion for new trial, supported by affidavits, which was heard by the court and overruled on December 18, 1919. The motion set forth, as grounds therefor, that the verdict was contrary to the law and the evidence, and that the court erred in rendering judgment upon the verdict. The motion also set forth at considerable length and in detail the circumstances surrounding the accused at the time of the killing of Clinton Lee, and from then up to and throughout the trials of the causes, stating, among other things, that "at the time of the returning of said indictment and trial said excitement and bitterness of feeling among the whites of said county against the negroes, especially against the defendants, was unabated and still at the height of intensity." It alleged, in substance, that the trials of the accused occurred during a period of great excitement; that the accused were given no opportunity to consult with friends or to employ counsel, and while they were confined awaiting trial a mob composed of several hundred armed white men surrounded the jail and courthouse, and that the excitement and feeling against the accused among the white people of the county was such that it was impossible to obtain an impartial jury. The substance of the ground thus pleaded was that they had not been given a fair trial on account of the alleged domination of a mob over the court and jury.
Upon overruling the motion for new trial, the circuit court allowed the accused 60 days...
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