State v. Smith

• Decision Date: 15 March 1915
• Docket Number: (Nos. 240, 304.)
• Citation: 175 S.W. 392
• Parties: STATE v. SMITH et al.
• Court: Arkansas Supreme Court

175 S.W. 392

STATE v. SMITH et al.

(Nos. 240, 304.)

Supreme Court of Arkansas.

March 15, 1915.

On Rehearing, April 12, 1915.

Appeal from Circuit Court, Washington County; J. S. Maples, Judge.

H. C. Smith and J. C. Longan were indicted for conspiracy and were acquitted on peremptory instruction by the court, and the State appeals. Affirmed, and motion for rehearing overruled.

C. A. Fuller, of Eureka Springs, Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State. Rice & Dickson, of Bentonville, and J. Wythe Walker, of Fayetteville, for appellees.

McCULLOCH, C. J.

The defendants H. C. Smith and J. C. Longan, were jointly indicted by the grand jury of Benton county for conspiracy, alleged to have been committed by conspiring together to defraud the county in a transaction concerning the purchase of a tract of land. A change of venue was granted, and the cause removed to Washington county, where it went to trial. The trial resulted in a verdict and judgment for defendants, and the state has appealed.

It is insisted by counsel for Longan that there is no bill of exceptions in the case, and that for that reason the judgment must be affirmed, inasmuch as it is not claimed that the record entries disclose any error of the court. The bill of exceptions in the record was not signed by the judge, but was approved by counsel representing the state and also by counsel representing defendant Smith. There was an attempt on their part to comply with the act of April 28, 1911, which provides that in cases other than felony cases —

"where the parties to an action agree in writing upon the correctness of a bill of exceptions by indorsement thereon, signed by one or more counsel of record of the respective parties, it shall be the duty of the clerk of the court, in which the case is pending, to at once file such agreed bill of exceptions and the same shall become a part of the record."

The certificate of the attorneys was in accordance with the terms of the statute, but it binds only the parties who joined in the approval, and not parties who were unrepresented by the attorneys who signed it. Obviously it was the intention of the Legislature to permit the parties themselves, through their counsel, to agree upon a bill of exceptions without the necessity of having the judge approve it, but it was not the intention to bind a party who was not represented by the attorneys who signed it. The presumption might be indulged, in the absence of a showing to the contrary, that counsel who signed the bill of exceptions represented the parties, but in this instance the certificate of counsel who signed shows on its face that they only represented Smith. It follows, therefore, that Longan is not bound by the bill of exceptions agreed to between the other parties, that is to say, between counsel for Smith and for the state; and, as there is no bill of exceptions in the case, there is nothing before us to review so far as the trial of his case is concerned, and the judgment as to him must be affirmed.

It is argued by counsel for Smith that the acquittal of Longan, under the indictment which charges conspiracy between him and Smith, necessarily operates as an acquittal of Smith, for the reason that the adjudication that one of the co-conspirators is not guilty operates as an acquittal of the other. Cumnock v. State, 87 Ark. 34, 112 S. W. 147. However, we do not get to that question in the case, for there is no motion for new trial in the record. The bill of exceptions agreed upon between Smith's counsel and the attorney representing the state shows that the court, at the conclusion of the introduction of evidence, gave a peremptory instruction in favor of the defendants, and it is necessary for a motion for new trial to have been filed in order to bring the ruling before us for review. The record entry shows that the motion for new trial was filed,...