Ware v. State

• Decision Date: 25 June 1923
• Docket Number: 6685
• Citation: 252 S.W. 934,159 Ark. 540
• Parties: WARE v. STATE
• Court: Arkansas Supreme Court

252 S.W. 934

159 Ark. 540

WARE v. STATE

No. 6685

Supreme Court of Arkansas

June 25, 1923

Appeal from Lee Circuit Court; E. D. Robertson, Judge; reversed.

Order reversed.

Murphy McHaney & Dunaway, R. D. Smith, Scipio Jones and Mann & McCulloch, for appellants.

The remedy of appeal, certiorari or prohibition is available to petitioners. The order of the lower court overruling their motion for discharge was such a final order as to sustain an appeal to this court for review. C. & M. Digest, §§ 2129, 3132; 72 Ark. 533; 28 Ark. 92; 89 Ark. 163; 100 Ark 496; 25 Ark. 420; 5 Ark. 398. It may be reviewed upon certiorari in case appeal can not be taken. 19 Ark. 410; 45 Ark. 158; 13 Ark. 720. The first two trials of appellants did not deprive them of the benefit of the statute now sought to be invoked, and these appellants brought themselves within the letter and spirit of the statute. They were tried at the May, 1920, term of Phillips Circuit Court, convicted, and the cases reversed on appeal, and remanded for new trials, and they have been awaiting trial ever since. At October, 1921 term of the Lee Circuit Court they agreed to a continuance but at the April and October, 1922, terms they appeared in court and demanded that they be brought to trial, but they were denied trials and the causes continued, over their protests, which entitled them to a discharge. 13 Ark. 720; 65 Ark. 404; 102 Ark. 393. Petitioners have prayed a writ of prohibition in case they are denied relief on appeal or certiorari. 26 Ark. 51. The court lost jurisdiction to try these cases, the facts set up in motion for discharge being true. 33 Ark. 191; 73 Ark. 66; 48 Ark. 227. The precise question was decided in a recent Missouri case. 246 S.W. 189. The statute has been before this court three times in the cases already cited, but the question as to the proper remedy appears not to have been determined. The petitioners are entitled to relief, however, and the powers of this court are sufficiently broad to afford it. 3 Ark. 532. Petitioners should be discharged from the prosecution. C. & M. Digest, §§ 3132-3135, art. 2, § 10, Constitution of Arkansas. 133 Cal. 349, 65 P. 828; 65 Ark. 404; 192 Ark. 393; 85 Cal. 515, 25 P. 829; 154 Ind. 450, 57 N.E. 106; 98 P. 122. Arkansas statute was evidently drafted from the Missouri statute, which has recently been construed. 246 S.W. 189. Appellants have brought themselves within the rule of 13 Ark. 720. The State has made no showing under § 3135, C. & M. Digest, that would prevent appellants being granted the relief demanded. 62 Ark. 543; 70 Ark. 521; 73 Ark. 625; 75 Ark. 350; 79 Ark. 594; 103 Ark. 119; 54 Ark. 243; 57 Ark. 165; 82 Ark. 203; 91 Ark. 567; 94 Ark. 169. The burden was on the State to bring itself within the provisions of said § 3135, which it utterly failed to discharge. Appellants should be discharged from the indictments and restored to their liberty.

J. S. Utley, Attorney General, and John L. Carter and Wm. T. Hammock, Assistants, for appellee.

Appellants, petitioners, seek a discharge from the indictments for offenses charged against them, under § 10, art. 2, Constitution of 1874, and §§ 3132-3135, C. & M. Digest. The testimony of the judge of the court shows there was not sufficient time at the adjourned day of the October, 1922, term, which adjournment was consented to by petitioners, in which to try the cases against petitioners. The term lapsed by reason of the fact that the judge was holding court in another county of the district at time appointed for holding adjourned term. 38 Ark. 227; 49 Ark. 112; 49 Ark. 230; 63 Ark. 5; 69 Ark. 459; 71 Ark. 313; 82 Ark. 94. The failure to try the cases on December 11, 1922, was not the fault of any one. 8 R. C. L. 72. "Permissible Delays," 16 C. J. 441, 445, § 3134, C. &. M. Digest. Waived right, no exceptions saved to any adverse ruling denying trial. 8 R. C. L. 74; 84 Ark. 128; 109 Ark. 346. Appellants have not pursued proper remedy. C. & M. Digest, § 2129. Final order defined. 100 Ark. 500. Order in controversy does not meet the requirements. 122 Ark. 155; 52 Ark. 224. The motion to discharge was merely an incident to the main case, and the denial of it was not a final order from which an appeal would lie. Certiorari will not lie when relief can be afforded by resort to other available modes of review. 116 Ark. 310. A habeas corpus proceeding would be a more appropriate remedy than either of the courses suggested by the petition. The following States appear to hold that habeas corpus is the proper remedy: California, Kansas, Nebraska, Nevada, New Jersey, New York, North Dakota, Texas, Colorado, Georgia, Massachusetts, Mississippi, Montana, Pennsylvania, South Carolina and Virginia. Annotations in 1912-D, 1273 Ann. Cas. Court cannot review question of fact on certiorari. 149 Ark. 338; 30 Ark. 148. Certainly the lower court was not without jurisdiction to make the order complained of. 65 Ark. 404; 102 Ark. 393; 94 Ark. 54; 48 Ark. 283. No ground for writ of prohibition. 144 Ark. 169. Neither did petitioners object to the jurisdiction of the lower court, but rather invoked it. 145 Ark. 540; 149 Ark. 237.

R. D. Smith, Scipio A. Jones, Mann & McCulloch and Murphy, McHaney & Dunaway, in reply.

The failure of the judge to hold the special or adjourned session of the Lee Circuit Court on Dec. 11, 1922, does not bring the case within the exception provided in § 3134, C. & M. Digest. Authority for special adjourned sessions, § 2112, C. & M. Digest; 39 Ark. 448; 104 Ark. 632. It would seem that the term of the Lee Circuit Court ended when the term of the Phillips Circuit Court began. 82 Ark. 188; 129 Ark. 558; C. & M. Digest, § 2208. Appellants have pursued the proper remedy. Petition could be considered amended to apply for habeas corpus, etc. C. & M. Digest, § 1030; 69 Ark. 642; 123 Ark. 510; 30 Ark. 681; 33 Ark. 316; 27 Ark. 365.

WOOD J. HART, J., dissenting.

OPINION

WOOD, J.

On May 14, 1923, the petitioners filed with the clerk of this court a transcript of the record of the proceedings had in their cases in the Lee Circuit Court, and prayed an appeal from the order of that court overruling the motion to discharge them. Along with this record they filed a petition to this court in which they alleged that they were indicted for murder in the first degree in the Phillips Circuit Court at the October, 1919, term; that they were twice tried and convicted in that court, and, on appeal to this court, the judgments were reversed, and the causes remanded for a new trial; that at the May, 1920, term of the Phillips Circuit Court a change of venue was granted them and their cases were transferred to the Lee Circuit Court; that at the October, 1921, term of the Lee Circuit Court the cases were continued by consent; that at the April, 1922, term of that court the petitioners filed a motion to have their cases set for trial on a day of that term; that the cases were not tried at that term, but were continued without the consent of the appellants, who were present and demanded a trial; that at the October, 1922, term of that court the appellants again filed a motion in open court asking that their cases be set for trial on a certain day; that the cases were not tried at that time, but were continued, in spite of the fact that the appellants were present demanding a trial.

Appellants further alleged that at the April, 1923, term they filed in open court a motion for a discharge on the ground that they had not been brought to trial before the end of the second term of the court having jurisdiction to try their cases; that the court, upon hearing the motion, found that there had been time to try the causes at the April and October, 1922, terms; that the petitioners had not consented to a continuance of their causes, but the court overruled the motion to discharge. The petitioners moved for a new trial, which was overruled, and they prayed an appeal to this court, which prayer was denied.

The petitioners further alleged that they had been confined in jail in Phillips and Lee counties since the finding of the indictments, and that they are now confined in the Lee County jail. They alleged that, by reason of the delay on the part of the State, they have not been brought to trial before the end of the second term of the court having jurisdiction of the causes, and that, under the Constitution and statutes of this State, they are entitled to be discharged from the offenses for which they are indicted. They alleged that the Lee Circuit Court, at its next October term, will proceed to try them, unless prevented by this court, which trials will cause these petitioners to spend large sums of money in defense, which they are unable to bear; that the Lee Circuit Court is without jurisdiction to try them. Wherefore, they pray that an appeal be granted by this court from the final order of the Lee Circuit Court overruling their motion to discharge, and that they be discharged from said indictments and from custody.

There is an alternative prayer in their petition for a writ of certiorari directed to the clerk of the Lee Circuit Court commanding him to certify the transcript of the record of the proceedings in the Lee Circuit Court on their petition for discharge, and the further alternative prayer for a writ of prohibition directed to the judge of the Lee Circuit Court and the prosecuting attorney of that circuit, prohibiting him from proceeding to try the petitioners. The record filed along with the petition shows a motion for discharge in the Lee Circuit Court, in which the facts, substantially as alleged in the petition here, are set up, and a response to that motion, in which the prosecuting attorney admits that the defendants were twice tried and convicted, as set up in their...