Wolfe v. State

• Decision Date: 12 February 1912
• Citation: 144 S.W. 208,102 Ark. 295
• Parties: WOLFE v. STATE
• Court: Arkansas Supreme Court

144 S.W. 208

102 Ark. 295

WOLFE v. STATE

Supreme Court of Arkansas

February 12, 1912

Appeal from Mississippi Circuit Court, Osceola District; Frank Smith, Judge; reversed.

STATEMENT BY THE COURT.

A number of indictments were returned by the grand jury of Mississippi County against the appellant, charging him with violations of the liquor law. These indictments were returned against appellant at the October, 1911, term of the circuit court of Mississippi County for the Osceola District. Four cases are here on appeal, and they involve the same questions, and are considered and determined at the same time.

The appellant and the prosecuting attorney entered into an agreement in writing which is as follows:

"MEMORANDUM.

"First No loops to be made by either The Whisper or any boat operated by Capt. Jos. E. Wolfe, and by loop is meant leaving a landing, going out into the river for the purpose of making sales and returning to the same landing or to any other landing within one mile of the first. This is not to prohibit doing the regular business from landing to landing.

"Second No person to be carried from landing to landing without payment of regular fare except on passes issued at Memphis.

"Third All cases on docket at Osceola and Blytheville for sales of liquor on said Whisper are to be continued for the term, that is for six months. If this agreement is kept by the said Captain Wolfe, all such cases are to be dismissed at the March term of said courts at cost of defendant. If this agreement is violated, the defendant shall pay fines and costs to the amount of two thousand dollars, and shall enter pleas of guilty in enough of these cases to aggregate that sum, other cases to be dismissed. But the defendant may be prosecuted in cases of violation for all future sales after this date.

"Fourth The circuit judge shall determine upon a hearing of both parties after due notice whether or not this agreement has been kept in case complaint is made of the violation thereof.

"Fifth: No question will be made as to the venue of sales made in the regular course of the boat's trip, and cases will not be brought upon such sales if this agreement is otherwise performed.

"Sixth: This agreement applies to all cases on sales prior to this date, except where fines are already assessed.

"Seventh: No violation of the Sunday laws.

(Signed)

"T. H. Carraway,

"Jos. E. Wolfe."

At an adjourned term of the circuit court held on the 10th day of November, 1911, at Osceola, complaint was made that this agreement had been violated, and appellant was cited to appear at a hearing to determine whether or not there had been a violation of the agreement.

The testimony of the various witnesses tends to show that whisky was sold on Sunday from appellant's boat, The Whisper, while she was opposite Osceola and out in the river on the Tennesee side about opposite a place called Plum Point. One of the witnesses testified that he kept the landing at Osceola. He "observed The Whisper Sunday three weeks ago; she was at Plum Point. She would go out from the bank and then go back, and go to the bank and back out."

One witness testified that he bought whisky on her on Sunday; that she was a little piece out from the bank.

The testimony shows that the whisky was not sold in Arkansas, but that the sales took place on the Tennessee side of the river.

The court entered up fines against appellant in the four cases aggregating the sum of $ 2,000, and entered judgment accordingly. The appellant filed a motion for a new trial, in which, among other things, he set up the following:

"That the testimony of witnesses who have testified before the court at the hearing of this cause was of such a nature as to surprise the defendant and to place him in such a position that he could not have controverted such testimony at said hearing.

"Defendant says that, if granted a new trial in this cause, he will, with the permission of the court, withdraw the pleas of guilty heretofore entered and go to trial upon said indictments, and that, if allowed to do so, he will request that a jury be impaneled, and that he be allowed to enter pleas of not guilty as charged in the indictments to which he has entered pleas of guilty, and he further says that the only conditions upon which he entered said pleas of guilty were that he was willing to enter into said agreement and to keep said agreement faithfully for the purpose of showing to this court that he had no intent to and would not violate the laws of the State of Arkansas. And defendant further states that, if a new trial is granted in this cause, he can and will produce evidence which will controvert the testimony of said witnesses above referred to."

The court overruled the motion, and the appellant, within sixty days, lodged what purported to be transcripts in the four cases in this court. These transcripts contain what is designated as the bills of exceptions. These bills of exceptions contain the testimony that was taken at the hearing of the issue as to whether or not appellant had violated his agreement. The memorandum above mentioned is also set forth, and the findings of the court. The bills of exception also contain the judgment of the court. But there is no record entry in the transcript showing the judgment of the court. This however has, since the transcript was lodged in this court, and after the expiration of sixty days, been supplied by certiorari.

Judgment reversed, and cause remanded.

The Appellant, pro se.

1. None of the sales were made in Arkansas nor in violation of the agreement. 40 Ark. 52.

2. Courts can only enforce the laws of their own jurisdiction. 94 Ark. 199.

3. Abuse of discretion in refusing to allow a defendant to withdraw a plea of guilty is reversible error. 12 Cyc. 352; 52 Kan. 566; 45 Id. 12.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The appeals should be dismissed. The final judgments were not lodged here within sixty days. Kirby's Digest, §§ 1188, 2614; 26 Ark. 468; 27 Id. 336; 73 Id. 8; 35 S.W. 232; 51 Id. 959; 37 Mo. 31; 147 U.S. 695; 45 Mass. 421; 45 F. 4521; 2 Thompson on Trials, § 2771; 89 Ark. 482. No judgment can be perfected after the time for perfecting the appeal. Elliott, App. Proc. 128.

2. It is not the office of a bill of exceptions to show record entries. Nor can a bill of exceptions supply or contradict the record proper. 72 Ark. 320; 84 Id. 343. A recital in the bill of exceptions that a judgment was rendered is not sufficient. 165 U.S. 168; 137 Ind. 257; 61 Mo. 375; 51 Id. 199; 5 Col. 244; 53 Mo. 321, 77 Ala. 519; 16 So. 911; 55 Ill.App. 217; 35 Id. 217; 109 Id. 539; 26 Miss. 109; 51 Ga. 501; Ell. App. Proc. 282, note 4.

3. The agreement was violated. 94 Ark. 198. While there was no authority for the agreement (94 Ark. 198), nor for acceptance of a conditional plea of guilty, appellant can not complain. Kirby's Digest, § 2296; 54 Ark. 120; 88 Id. 290.

WOOD, J. MCCULLOCH, C. J., and KIRBY, J., dissent.

OPINION

WOOD, J., (after stating the facts).

1. Upon the authority of Gross v. State, 89 Ark. 482, 117 S.W. 531, and other recent cases, the Attorney General contends that, inasmuch as the transcript filed with the clerk of this court within the sixty days did not show the record entry of a judgment against the appellant, his appeal was not perfected in time. These cases hold that to give this court jurisdiction on appeal the record must be lodged in the office of the clerk of the Supreme Court within sixty days after the judgment. See also section 2614, Kirby's Digest.

The majority of the court are of the opinion that this statute is complied with when there is a transcript filed within sixty days wherein the bill of exceptions is set out, which shows that a trial was had upon the testimony and a final judgment was rendered although that judgment is not copied as a part of the record. The transcript thus showing is sufficient to give this court jurisdiction, and, although the court will not look to the bill of exceptions to see what the judgment of the court was, as that is not the proper place for it, still the court will, upon filing of such transcript, permit the appellant to bring up by certiorari the record entry of the judgment. This has been done in this case, and we have now embodied, as a part of the record, the final judgment of the court from which the appeal has been prosecuted. In the opinion of the majority of the court it is not essential to give this court jurisdiction that the entire record of the proceedings of the trial court shall be lodged in the office of the clerk of the Supreme Court within the sixty days; but if a transcript is lodged within the sixty days, from which this court can see that there was a trial and a final judgment rendered, by a statement to that effect in the bill of exceptions, then the court will entertain the appeal and allow the transcript of the record to be amended to show the record entry of the final judgment. A recital in the bill of exceptions to the effect that a judgment was rendered and a copy of the judgment itself set forth therein is not sufficient evidence of such judgment. Gray v. Singer, 137 Ind. 257, 36 N.E. 209; Clarke v. McDade, 165 U.S. 168, 41 L.Ed. 673, 17 S.Ct. 284.

But where there is such a statement and such a copy in the bill of exceptions contained in the...