Beard v. State

ON REHEARING.

Hide, C. J.

A petition for rehearing was presented in this case after the time contemplated by the statute and fixed by the rules of the court when such petitions may be heard. The petition was accompanied by a showing of matters occurring after the trial indicating the falsity of the evidence adduced against the appellant, and asked a stay of proceeding under the judgment of this court until an application could be made to the trial judge for a writ of error coram nobis, and until this court reconsidered its decision. The court, being in recess, could take no action on the matter, but two judges of the court granted a supersedeas, to be effective until the court convened, and could formally act upon the p'etition for rehearing. It is not pretended that4 this court could take cognizance of these subsequent matters, and they were only presented as an argument in favor of granting a temporary stay until those matters could be presented to the trial court and the decision of this court on the former hearing reexamined. The court has ignored the presentation out of time, and carefully re-examined its former decision, as it is within its power to recall a mandate during the term.

The case came here on writ of error, and only presented technical' questions as to the sufficiency of the indictment and regularity of the order calling the special term of court at which appellant was convicted. The matters usually presented on appeal, the sufficiency of the evidence, the rulings and instructions of the court, were not presented in this case, and there was no bill of exceptions, nor motion for new trial nor in arrest of judgment. The evidence, not being preserved by bill of exceptions, was, of course, not before the court.

Some difference of opinion existed as to whether the indictment would have been sufficient if a demurrer had been interposed to it, but that point was not decided, as all the judges concurred in holding that this alleged informality could’ not be ■ presented here for the first time on writ of error. Some of the judges thought the indictment in good form wherever attacked, and preferred putting the decision on that ground. There are no other questions before the court, and, a majority being satisfied that the former decision was a correct declaration of the law on the points involved, the motion for rehearing is denied.

(Dissenting opinion delivered July 23, 1906.)

The only review in criminal cases, beyond a review of the events of the trial on writ of error or appeal, is an original proceeding in the trial court on writ of error coram nobis. The limits and office of this proceeding were considered by this court in 1893, and the opinion was written by Mr. John Fletcher, special judge (Howard v. State, 58 Ark. 229). Matters not presented in the trial and not reviewable on appeal must be reached by this ancient writ; and, when it is inapplicable, the power of the courts is exhausted, and a power is lodged elsewhere to relieve against convictions legally obtained, but which may be shown to be wrong in fact or too harsh. It is the paramount duty of the courts to preserve the constitutional limits of all departments of government, and it is needless to say that the courts must be the first to limit their power within their constitutional orbit.

Battue and McCuuuoch, JJ., concur.

Beard v. State.