(after stating the facts). 1. Upon the authority of Gross v. State, 89 Ark. 482, 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; Clark v, McDade, 165 U. S. 168.
But where there is such a statement and such a copy in the bill of exceptions contained in the transcript lodged in this court, the court will entertain the appeal and allow the transcript to be amended so as to embody the record entry of the judgment in the court below. Of course, if the transcript can not be so amended for the reason that no final judgment has been rendered in the court below, then this court would dismiss the appeal, notwithstanding the statement in the bill of exceptions that there had been a final judgment, and even though a purported copy of such final judgment were contained in the bill of exceptions, for, in. the last analysis, thé court would have to look to the record proper for the judgment, and not to the bill of exceptions. Arkadelphia Lbr. Co. v. Asman, 72 Ark. 320; Berger v. Houghton, 84 Ark. 343.
2. Upon the issue as to whether or not the appellant had violated his agreement with the prosecuting attorney, as set forth in the bill of exceptions, the court found “that the defendant heretofore, during this term of court, entered his plea of guilty in this cause, and that the same was continued, for the term in pursuance of an agreement made between the prosecuting attorney and the defendant and his counsel, which agreement was offered in evidence.” The court further found “that said plea of guilty was entered upon the condition that the court’s discretion to impose a fine under the defendant's plea should be exercised in the event only that the defendant violated the terms of the said agreement; and upon a consideration of all the evidence offered in this cause the court finds that said agreement was in fact violated by the defendant, and therefore the court should now impose a fine in this case.”
It thus appears that the plea of guilty was entered in this case upon condition that the court would impose a fine under the plea only in the event that the defendant violated the terms of the agreement. In other words, if the appellant complied with the terms of his agreement not to sell liquor in the future as therein specified, then the court would not impose a fine upon him in the cases in which he had entered pleas of guilty.
The court expressly finds that the plea of guilty was entered upon condition, and the effect of the court’s construction of the agreement was that it permitted the court to allow the appellant to enter pleas of guilty upon condition that the punishment which the law imposes for a violation of the statute would not be inflicted on appellant for past offenses provided appellant complied with the law in the future.
Now, the law does not authorize any such agreements as here entered into with the prosecuting attorney, and pleas of guilty can not be accepted on condition that the fines imposed by statute as a result of a violation of the law will be pretermitted provided the offenders do not commit similar. off enses in the future. There is no authority in the statute “for a plea of guilty to be entered and received on any kind of condition, or for judgment to be suspended on condition.” Joiner v. State, 94 Ark. 198.
Under the law a party is' either guilty or not guilty; and when he enters á plea-of guilty upon the indictment under a statute which he has violated, the law fixes the punishment, which it is not in the discretion of the court to withhold unless the.plea of guilty is withdrawn. Joiner v. State, supra.
While it is within the discretion of the court to permit a plea of guilty to be withdrawn, it is not within the power of the court to withhold the punishment if the plea of guilty is not withdrawn. Kirby’s Digest, § 2296.
In the case, since the court finds that the appellant’s pleas of guilty were entered upon condition, it results that they were not such plea of guilty as the law authorizes or contemplates, and therefore the court was not justified in inflicting punishment upon such pleas. In the case of Joiner v. State, supra, “the record made by the clerk at the time showed that the pleas of guilty were entered unconditionally.” The court should not in any case except a plea of guilty on condition, and can not render judgment upon a plea of guilty that has been entered upon condition. If the court has accepted and has entered on record a plea of' guilty on condition, then the only authority which the court has over such a plea is to allow the same to be withdrawn and to allow a proper plea to be entered. The only plea is either guilty or not guilty.
This case differs from the case of Joiner v. State, supra, in the very fact that in that case the plea was entered unconditionally, whereas in this case, as found by the court, the plea was entered upon certain conditions. The question in Joiner v. State was as to whether the court could exercise its discretion to allow the appellant to withdraw his plea of guilty which, as appeared from the record, was properly entered, that is, unconditionally. That, under the statute, as we have seen, was within the court’s discretion.
Here the question, is as to whether or not the court has the discretion to allow a plea of guilty to be entered upon a condition, and thereafter render a judgment against and impose a punishment upon the party entering such plea because he had failed to comply with the conditions upon which the plea was entered. The whole proceeding was without authority of law and void. The court should have granted appellant’s motion for a new trial arid have allowed him to enter his plea of not guilty, as requested. It was not within the discretion of the court, upon the showing made in this record, to withhold such request.
The judgment is therefore reversed, and the cause is remanded with directions to allow appellant to enter his plea of not guilty and for further proceedings according to law.
McCulloch, C. J., and Kirby, J., dissent.