By stipulation, the judgment of the trial court setting aside the conviction and the sentence of the court pronounced thereon has been made a part of the record in this case. This order and judgment was made and entered at the same term of court at which the judgment sentencing appellant to a term in the penitentiary was made and entered, but it was not made until after appellant had prayed and perfected his appeal to this court.
Grave doubt has been expressed in our consultation by the members of this court as to the legal sufficiency of the testimony to support the conviction, and Justice Holt dissents upon that ground, but he also concurs in what is *Page 383 hereinafter said. In this respect the case is not unusual. Such a condition frequently arises. But in another and far more important respect, the case is very unusual. We have now before us a record containing the solemn finding and recital that the trial judge has concluded that the testimony did not sustain the conviction. It was the peculiar province of the trial judge to determine that fact. It was said in the case of Missouri Pacific Rd. Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538, as has been said in many other cases, that the trial judge has a power which we do not possess in passing upon the weight and sufficiency of the testimony.
It is true, of course, that the action of the trial judge in sentencing appellant to the penitentiary imports a finding that the testimony was sufficient to sustain the conviction. But during the continuance of that term he changed his opinion. This may have resulted from further reflection, or upon a consideration of new or additional testimony. But in any event, we have before us the judgment of the court, rendered at the same term of court, finding that the testimony does not sustain the conviction.
Appellant does not, upon this additional record, ask that his appeal be dismissed, but in bringing this additional record before us, he does ask the relief, to which he may be entitled. If to grant him the relief, to which he is plainly entitled, it is necessary to dismiss the appeal, we should make that order. Certainly, we should not affirm his conviction and order him sent to the penitentiary, when the trial judge has found that the testimony is not sufficient to sustain the conviction.
The majority say the lower court was without power to make any order in the case after the appeal was perfected. When sentence was pronounced appellant could take no action to obtain relief except to appeal to this court, and that he did. But before the adjournment of the term at which the sentence was pronounced the trial court concluded that he had erred in sentencing appellant to the penitentiary, for the reason that the testimony was not sufficient to sustain the conviction. Shall we deny the trial judge the right to correct the error which *Page 384 he admits was made? The majority say we must because appellant has appealed to this court. If this be true, why not dismiss the appeal and let justice prevail?
The majority say they are constrained to the conclusion which they have reached by the following cases: Robinson v. Arkansas Loan Trust Co., 72 Ark. 475,81 S.W. 609; Freeman v. State, 158 Ark. 262, 249 S.W. 582,250 S.W. 522; Emerson v. Boyles, 170 Ark. 621,280 S.W. 1005, 44 A.L.R. 1193.
In the first of these — the Robinson case — there was involved only the question when an appeal had been perfected, and when a second appeal might be prosecuted. The trial court in that case had made no order, either at the same or at a subsequent term, vacating the judgment appealed from.
In the opinion on re-hearing in the case of Freeman v. State, supra, it was said that "The appeal lifted the cause out of the circuit court." That was true in that case because, as stated in the original opinion, "the trial court was without jurisdiction to modify the judgment, upon motion, after the term of court at which the judgment was rendered had expired." In other words, the control of the court over the judgment had ceased, because the term of court at which it was rendered had expired, and it was then beyond the power of the court to modify or change the judgment. But not so here.
The case of Emerson v. Boyles, supra, involved only one question, which is reflected in the single headnote to that case, which reads as follows: "Where the accused in a felony case pleaded guilty and was sentenced to a term in the penitentiary, and had served a part of his term, the trial court had no authority at the same term of court to set aside the sentence and direct the case to be continued, as the effect would be to put the accused in jeopardy twice for the same offense."
In so holding the majority opinion states that the authorities on the question presented and decided are divided, and that among other courts which had held contrary to the conclusion there announced was the Supreme Court of the United States. I am not now pressing my *Page 385 dissenting view in that case, nor am I trying to reinforce the dissenting opinion. It will speak for itself. What I do protest against is the extension of the majority opinion.
The majority opinion in the Emerson case is authority for holding that the court had the power to set this judgment aside during the term at which it was rendered, even though an appeal had been prosecuted. The following statement from 12 Cyc. 783 is there approved: "`At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by increasing its severity, where the original sentence has not been executed or put into operation; but, where the prisoner has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment.'"
The opinion itself states the law to be that "It is a rule of universal application that, so long as a judgment or sentence of a court remains unexecuted or is not put in operation, it is, in contemplation of law, in the breast of the presiding judge of the court, and is subject to revision and alteration during the same term at which it is rendered."
Here, let it be remembered the judgment or sentence of the court remains unexecuted and has not been put into operation. The reason given in the Emerson case, supra, for holding that a sentence may not be vacated, after it has been put into operation, and has been executed in whole or in part is, as the headnote above quoted says, "would be to put the accused in jeopardy twice for the same offense." I do not understand that any court has ever held that it twice puts a man in jeopardy to try him a second time upon the same charge, after a new trial has been granted setting aside a prior conviction. If that is the law we will have to readjust and rewrite our entire criminal procedure.
In the chapter on Judgments, 15 R.C.L., 132, p. 681, it is said: "Within the limits of time allowed by law a judgment may, pending an appeal therefrom, be *Page 386 amended in the court which pronounced it, if the circumstances are such as to warrant the amendment, if no appeal had been taken."
Certainly, the circumstances that the trial court had concluded that the testimony was not sufficient to sustain the conviction would appear, not only to justify, but to require, the trial court to grant a new trial, and the general power of the court to set aside a judgment of conviction at the term at which it was rendered, when its execution has not been entered upon, ought not to be questioned.
However, it was said in the case of Union Sawmill Co. v. Langley, 188 Ark. 316, 66 S.W.2d 300, that "We have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause."
Here, the court has stated the cause which induced that action.
It was held in the case of Blackwood v. Eads, 98 Ark. 304,135 S.W. 922, to quote a headnote in that case, that "Trial courts have large discretion in the matter of granting new trials, especially upon the weight of the evidence, and the Supreme Court will not interfere with such discretion unless it be made to appear that it was improvidently exercised."
Certainly, it was not all improvident exercise of the power to grant a new trial when the court concludes that the testimony was not sufficient to sustain the conviction.
In the case of Foohs v. Bilby, 95 Ark. 302,129 S.W. 1104, it was held, to quote a headnote in that case, that "The fact that a party against whom a judgment has been rendered in the circuit court took all appeal therefrom and that the judgment was affirmed on appeal will not preclude such party from applying, under Kirby's Digest, 4431, subdiv. 7, to the circuit court at a subsequent term to vacate the judgment for unavoidable casualty which prevented the party from appearing at the trial." *Page 387
In that case, as the headnote copied reflects, there had been, not only an appeal from a judgment, but the judgment had been affirmed, yet it was held that pursuant to the statutory power the trial court might grant a new trial for an unavoidable casualty. Here, the court was not acting pursuant to a statutory power, but under its inherent power to correct its judgment at any time during the term at which it was rendered, before any part of the sentence or judgment had been executed. It is unimportant whether the court, in a particular case, derives the power to vacate the judgment from the statute, or has that power inherently. Courts may exercise their jurisdiction in either case.
What better example of the harm which may follow from attempting to interfere with, or control, the discretion of trial courts could be found than is presented in the instant case? Here, the trial court, which is not restricted, as we are, to a mere determination of the legal sufficiency of the testimony, has found that the testimony does not sustain the conviction, and that finding was made, as has been several times herein said, at the term at which the trial and conviction were had. The majority ignore that finding, because it was not made until after appellant had appealed to this court for relief. To so hold in my opinion, is to let technicality go to seed. Justice has obviously miscarried, and this result has been accomplished without necessity or reason therefor. If any rule of practice required that result, it should be changed, but, as I have attempted to show, we have no such rule of practice. If relief cannot otherwise be granted, we should, of our own motion, dismiss this appeal.
Consider the effect of the majority opinion. We have affirmed the sentence. That certainly is jeopardy. Appellant must serve a sentence for a crime which the trial court found he was not shown to have committed, Only the pardoning power of the Governor may now save him. On the other hand, if he should be pardoned, he may not again be tried, although he is, in fact, guilty, because, as a result of our action, and not that of the trial court, he has been placed in jeopardy. How much better would it *Page 388 be to preserve the orderly and usual course of respecting the judgment of the trial court, no part of the sentence having been executed?
I, therefore, very respectfully dissent, and am authorized to say that Justice HOLT concurs in the views here expressed.