dissenting. I dissent from that part of the majority opinion that holds that they will' not pass upon the alleged errors relating to unlawful search and seizure of an automobile because no motion for a new trial appears in- the record. The majority opinion admits, however, that an order was ' made overruling a motion for a new trial.
In Henry v. State of Mississippi, 379 U. S. 443, 85 S. Ct. 564 (1965), the court had before it an alleged unlawful search and seizure of an automobile- in which the Supreme Court of Mississippi had held that the petitioner had waived his objection to the alleged illegal search because of a procedural, requirement that an objection to illegal evidence be made at the time the evidence was introduced. In distinguishing between state substantive grounds and state procedural grounds for purposes of review of federal rights, the United States Supreme Court said:
‘ ‘... These cases settle the proposition that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest. In every cas-e we must inquire whether the enforcement of a procedural forfeiture serves, such a state interest. If it does not, the state procedural rule ought not be permitted to bar vindication of important federal rights.
“The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of.the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration and a reversal and new trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict because of the erroneous admission of the officer’s testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action....”
The requirement in our adjudicated cases that the matters brought forward on appeal must be set forth in the motion for a new trial appears to be a carry-over from the procedure in effect at the time the Criminal Code? was passed in 1869. It is not supported by the Criminal Code § 332 (Ark. Stat. Ann. § 43-2725 [Repl. 1964]), which specifically provides:
“A judgment of conviction shall only be reversed for the following errors of law to the. defendant’s prejudice appearing upon record:
First. An error of the circuit court in admitting or rejecting important evidence.
Second. An error in instructing or in refusing to instruct the jury.
Third. An error in failing to arrest the judgment.
Fourth. An error in allowing or disallowing a peremptory challenge.
Fifth. An error in overruling a motion for a new trial.”
Furthermore, under Criminal Procedure Rule No. 1, 239 Ark. 850a, appellants, immediately upon affirmance of this decision, will be entitled to apply to this court for permission to go before the? trial court for purposes of having their constitutional rights adjudicated.
Not only does the procedure employed by the majority raise a question as to the constitutional validity of our state procedure under the due process clause, but it in effect sends appellants on a round robin to accomplish what is before the court at this time on a record sufficient to present the issues upon which they rely to reverse their convictions. In fact, this is the first ground set forth in section 332, above, for a reversal.
This round robin procedure, however, does make a difference to appellants, for upon affirmance of the judgment they will be incarcerated in .the state penitentiary without right of bond, and under Criminal Procedure Rule No. 1 no provision is made for a bond. Furthermore, they are not entitled to apply'to the federal courts for habeas corpus relief on their alleged federal constitutional rights until after they have exhausted their state court remedies. Since they have been sentenced to only two years., our procedure may result in their serving a substantial portion of their sentences before they have obtained a final determination of their constitutional rights. If we should rule on the alleged illegal search and seizure, and should the ruling be contrary to appellants ’ position, they could remain on bond pending a petition for certiorari to the United States Supreme Court or immediately apply for habeas corpus in the? federal district court.
For these reasons, I dissent to that part of the majority opinion which refuses to pass on these questions.