text:
    IN RE: CHANGES TO THE ARKANSAS RULES OF CIVIL PROCEDURE AND THE ARKANSAS RULES OF APPELLATE PROCEDURE
    712 S.W.2d 296
    Supreme Court of Arkansas
    Delivered July 7, 1986
   Per Curiam.

The following changes in the rules were drafted by our Committee on Rules of Pleading, Practice, and Procedure in Civil Cases. We wish to thank the committee chairman, Judge Henry Wilkinson, and the committee reporter, Professor John J. Watkins, as well as all of the members of the committee, for the continuing superb job they have done.

The changes prescribed in this opinion will become effective September 15,1986. Between now and that date we will welcome suggestions and comments on them from bench and bar.

Rule 4, Ark. R. Civ. P.

Rule 4 of the Arkansas Rules of Civil Procedure is amended as follows:

(1) By deleting the present language of subsection (e)(3) and substituting:

(e)(3) By any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.

(2) By adding a new subsection to be designated (k):

(k) Service of Other Writs and Papers. Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs, or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this Rule for service of a summons and complaint. Provided, however, any writ, notice or paper requiring direct seizure of property, such as a writ of assistance, writ of execution, or order of delivery shall be made as otherwise provided by law.

The following addition is made to the Reporter’s Note accompanying Rule 4:

Addition to Reporter’s Note, 1986 Amendment: Rule 4(e)(3) is amended to make explicit that service by mail outside the state must be sent with restricted delivery, thus harmonizing the provision with Rule 4(d)(8), which governs service by mail within the state. New subsection (k) is primarily aimed at making clear that the service-by-mail provisions of Rule 4(d)(8) may be utilized to serve writs of garnishment.

Rule 5, Ark. R. Civ. P.

Rule 5 of the Arkansas Rules of Civil Procedure is amended by adding the words “or any statute” following the word “rule” in the first sentence of subsection (b), to wit:

(b) Service; How Made. Whenever under this rule or any statute, * * * *

The following addition is made to the Reporter’s Note accompanying Rule 5:

Addition to Reporter’s Note, 1986 Amendment: The 1986 amendment adds the words “or any statute” following the word “rule” in the first sentence of subsection (b). The rule thus applies not only to those papers required to be filed by the Rules of Civil Procedure, but also to documents that must be filed under the provisions of particular statutes, e.g., Ark. Stat. Ann. § 34-2617 (Supp. 1985) (notice of intent to sue in medical malpractice proceedings).

Rule 6, Ark. R. Civ. P.

Rule 6 of the Arkansas Rules of Civil Procedure is amended as follows:

By deleting from the third sentence of subsection (a) the phrase “seven (7) days” and substituting “eleven (11) days.”

The following addition is made to the Reporter’s Notes accompanying Rule 6:

Addition to Reporter’s Note, 1986 Amendment: Rule 6(a) is amended, consistently with the federal rule, to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the former version of the rule, parties bringing motions under rules with 10-day periods could have as few as five working days to prepare their motions.

Rule 11, Ark. R. Civ. P.

Rule 11 of the Arkansas Rules of Civil Procedure is amended to read as follows:

Signing of Pleadings, Motions, and Other Papers; Sanctions
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

The following addition is made to the Reporter’s Note accompanying Rule 11:

Addition to Reporter’s Note, 1986Amendment: Rule 11 has been completely rewritten. It is now substantially identical to Federal Rule 11, as amended in 1983. As adopted in 1979, Arkansas Rule 11 was virtually identical to its federal counterpart, providing for the striking of pleadings and imposition of disciplinary sanctions to check abuses in the signing of pleadings. Experience under original Rule 11 in the federal courts demonstrated that the rule was not effective in deterring abuses, and confusion existed as to the circumstances that could trigger striking a pleading or taking disciplinary action, the standard of conduct expected of attorneys who sign pleadings and other papers, and the range of available sanctions. The amended rule is intended to reduce the reluctance of the courts to impose sanctions by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions.

As amended, Rule 11 expressly applied to pleadings, motions, and other papers. It therefore includes discovery requests, discovery motions, and any other paper that must be filed and served under Rule 5, Ark. R. Civ. P. Moreover, amended Rule 11 provides that, in addition to disciplinary sanctions, the trial judge may impose other sanctions upon an offending attorney, including a reasonable attorney’s fee for the opposing party. The assessment of attorney’s fees for violation of procedural rules is currently found in other Rules of Civil Procedure, e.g., Rules 37(a)-(d), 56(g), and 26(b) & (c).

Amended Rule 11 states that the signature of an attorney constitutes a certificate by him “that to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” This language is substantially stronger than in the former rule. In addition, the recently adopted Arkansas Rules of Professional Conduct emphasize that a lawyer may not ethically bring or defend a proceeding or an issue unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. See Rule 3.1, Arkansas Rules of Professional Conduct.

Under the former version of Rule 11, the signature of an attorney certified that the suit or motion was not interposed for purposes of delay. The new rule is broader in stating that the pleading, motion or other paper “is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” This provision is consistent with the newly adopted ethical rules. For example, Rule 3.2 of the Arkansas Rules of Professional Conduct provides that a lawyer “shall make reasonable efforts to expedite litigation consistent with the interest of the client.”

Rule 30, Ark. R. Civ. P.

Rule 30 of the Arkansas Rules of Civil Procedure is amended by adding the following new subsection (b)(7):

(b) * * *
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For purposes of these rules, a deposition by telephone is taken at the place where the deponent is to answer questions propounded to him.

The following addition is made to the Reporter’s Note accompanying Rule 30:

Addition to Reporter’s Note, 1986 Amendment: New subsection (b)(7) is based upon the corresponding federal rule. Although depositions by telephone have been available by stipulation under Rule 29, this subsection authorizes that method by order of the court as well. The second sentence of the new subsection, under which the telephone deposition is deemed “taken” at the place where the witness is to answer the questions (rather than the place where the questions are propounded), is necessary as a definitional provision in light of other rules involving the place of a deposition. See Rules 37(a)(1), 37(b)(1), and 45(d).

Rule 36, Ark. R. Civ. P.

Rule 36 of the Arkansas Rules of Civil Procedure is amended by adding the following as new subsection (c):

(c) Requests for admissions must be filed in a separate document so titled and shall not be combined with interrogatories, document production requests, or any other material.

The following addition is made to the Reporter’s Note accompanying Rule 36:

Addition to Reporter’s Note, 1986 Amendment: Under new subsection (c), it is impermissible to combine requests for admissions with interrogatories or other discovery devices. The amendment is consistent with the practice followed in the Arkansas federal courts. See Rule 15(e), Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas (as amended effective May 1, 1985).

Rule 45, Ark. R. Civ. P.

Rule 45 of the Arkansas Rules of Civil Procedure is amended as follows:

(1) By deleting the first sentence of subsection (c) and substituting the following:

A subpoena may be served by the sheriff of the county in which it is to be served, by his deputy, by any other person who is not a party and is not less than 18 years of age, or by mail in the same manner permitted for service of process pursuant to Rule 4(d)(8).

(2) By deleting the second paragraph of subsection (c) and substituting the following:

A witness, regardless of his county of residence, shall be obligated to attend for examination on trial of a civil action in the State of Arkansas when properly served with a subpoena at least five (5) days prior to the trial; provided, however, that the witness must be paid or tendered at the time and place of trial reasonable expenses for loss of time based on the witness’ present earnings or $30 per day for his attendance, whichever is greater, and $0.20 per mile for travel from his home to the place of trial. Should a continuance in the cause be granted and the witness be provided adequate notice thereof, reservice of the subpoena shall not be necessary. If now exempt by law from personal attendance at trial, the witness shall be required to give his deposition in accordance with subsection (d) of this rule.

(3) By deleting “three (3) days” in the last paragraph of subsection (c) and substituting “five (5) days.”

(4) By adding the following new sentence at the end of the first paragraph of subsection (d):

The witness must be properly served at least five (5) days prior to the date of the deposition, unless the court grants leave for a subpoena to be issued within that period. The witness must be paid or tendered at the time of deposition reasonable expenses for loss of time based on the witness’ earnings or $30 per day for his attendance, whichever is greater, and $0.20 per mile for travel from his home to the place of deposition.

Ark. Stat. Ann. § 28-524 (Repl. 1979), is deemed superseded to the extent that it conflicts with this rule.

The following addition is made to the Reporter’s Note accompanying Rule 45:

Addition to Reporter’s Note, 1986 Amendment: Rule 45(c) is substantially revised. The 1986 amendment changes prior Arkansas practice by permitting any person who is not a party and is not less than 18 years of age to serve a subpoena, thus adopting the federal practice. Moreover, the amended rule permits service of a subpoena by mail in the same manner as service of process under Rule 4(d)(8). The 1986 amendment also eliminates the distinction between witnesses residing in the county of trial and those residing outside the county. All witnesses must be served at least five days prior to trial, unless the court grants leave to allow service within that period, and all must be paid the same attendance fee and travel expenses. These fees, specified in the amended rule, must be paid at the time of trial, a change from the prior practice of requiring payment or tender of the fees at the time of service. Rule 45(c) also now makes plain that reservice of the subpoena is not necessary if a continuance is granted in the matter and the witness is given sufficient notice prior to his attendance. In that situation, the witness would be compelled to attend trial on the new date, and a new subpoena would not be required. Subsection (d) is also amended to make plain that the five-day minimum for service and the attendance and travel fee requirements apply to subpoenas for taking depositions as well as to subpoenas for appearance at trial. However, there is no change in the requirement that a deposition witness can be deposed only in the county where he resides, is employed, or transacts his business in person, absent a court order.

Rule 72, Ark. R. Civ. P.

The Arkansas Rules of Civil Procedure are amended by adding the following as new Rule 72, which supersedes Ark. Stat. Ann. § 27-402 (Supp. 1985):

Rule 72.

SUITS IN FORMA PAUPERIS

(a) Every indigent person not being of ability to sue, who shall have a cause of action against another, may petition the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute his suit in forma pauperis and to have counsel assigned to conduct his suit.

(b) All such petitions shall be accompanied by an assertion of indigency, verified by a supporting affidavit. The affidavit form will be provided by the court for such purposes. Any petition not in compliance with this provision will be returned to the petitioner.

(c) The court to which such petition is presented, if satisfied of the facts alleged that the petitioner has a colorable cause of action, may by order allow him to prosecute his suit in forma pauperis and may assign him counsel, who shall do his duty therein without taking any fee or reward therefor.

(d) Every person so permitted to proceed in forma pauperis may prosecute his suit without paying any fees to the officers of the court, and shall not be prevented from prosecuting the same by reason of his being liable for the costs of a former suit brought by him against the same defendant.

(e) No person shall be permitted to prosecute any action of slander, libel or malicious prosecution in forma pauperis.

(f) If the person proceeding in forma pauperis is guilty of any improper conduct in the prosecution of his suit, or of any wilful or unnecessary delay, the court may, in its discretion, annul the order permitting him to proceed in forma pauperis. The petitioner shall thereafter be deprived of all privileges conferred by such order.

The following Reporter’s Note is adopted to accompany the rule:

Reporter’s Note. New Rule 72 tracks, with minor linguistic changes, the former statutory provisions governing suits by indigents. These statutes, Ark. Stat. Ann. §§ 27-401, 27-403 — 27-406 (Repl. 1979), were repealed by Act 208, 75th General Assembly, 1985. Section 27-402, adopted in 1981 to replace an earlier provision, was not repealed; however, it is superseded by this rule, which adopts the requirements of section 27-402 as subsection (b). The rule does not change prior Arkansas law.

Rule 3, Ark. R. App. P.

Rule 3 of the Arkansas Rules of Appellate Procedure, is amended by adding the following at the end of subsection (b):

(b) * * * Failure of the appellant or cross appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross appeal. If, however, the record on appeal has not been filed pursuant to Rule 5, the parties, with the approval of the trial court, may dismiss an appeal or cross appeal by stipulation filed in that court, or that court may dismiss an appeal or cross appeal upon appropriate motion and notice by either party.

The following addition is made to the Reporter’s Note accompanying Rule 3:

Addition to Reporter’s Note, 1986 Amendment. Rule 3(b) is amended to incorporate provisions of statutes superseded when the rules of appellate procedure were adopted. The revised rule makes plain that the appellate court may, in its discretion, dismiss an appeal if the appellant has not taken the appropriate steps to secure review after filing the notice of appeal. However, if the record has not yet been filed in the appellate court, the trial court may dismiss the appeal upon stipulation of the parties or upon motion of either party. With respect to the latter provision, the rule represents a slight change in prior practice, under which dismissal in the trial court was by stipulation only and an appellee was required to file a partial record in the appellate court in order to move for dismissal there. See Norfleet v. Norfleet, 223 Ark. 751, 268 S.W.2d 387 (1954). Leaving the matter to the trial court when no record on appeal has been filed is consistent with Rule 5, which permits the trial court to extend the time for filing the record, and is perceived as less expensive and cumbersome than the prior practice.

Rule 4, Ark. R. App. P.

Rule 4 of the Arkansas Rules of Appellate Procedure is amended as follows:

(1) By adding the following at the end of subsection (a):
(a) * * * Upon a showing of failure to receive notice of entry of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

(2) By inserting the word “or” after the phrase “under Rule 52(b),” in subsection (b) and deleting the phrase “or of a motion to alter or amend a judgment under Rule 59(f),” in the same subsection.

The following addition is made to the Reporter’s Note accompanying Rule 4:

Addition to Reporter’s Note, 1986 Amendment:

Rule 4(a) is amended to empower the trial court to extend the time for filing a notice of appeal when the party has not received notice of the entry of the judgment or order from which he seeks to appeal. The amendment represents a narrow exception to the rule that the filing of a notice of appeal is jurisdictional and, unless timely filed, there can be no appeal. White v. Avery, 226 Ark. 951, 291 S.W.2d 364 (1956). The change was deemed necessary to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). Although under longstanding Arkansas custom opposing counsel have been given an opportunity to approve a judgment or order prepared by opposing counsel, circumstances have arisen where counsel did not receive that opportunity and did not otherwise receive notice that a judgment had been entered.

The reference in Rule 4(b) to Rule 59(f), Ark. R. Civ. P., was rendered obsolete when Rule 59(f) was deleted in 1983. See Reporter’s Note, Rule 59(f). Moreover, a new Rule 59(f) was added in 1984, thus making the reference in Rule 4(b) even more confusing. This amendment deletes the language referring to Rule 59(f).

Rule 5, Ark. R. App. P.

Rule 5 of the Arkansas Rules of Appellate Procedure is amended by adding the following sentence before the last sentence in subsection (b):

An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.

The following addition is made to the Reporter’s Note accompanying Rule 5(b):

Addition to Reporter’s Note, 1986 Amendment: The new language is designed to address a problem stemming from the relationship between Appellate Rules 4 and 5. Under prior practice and under certain circumstances, Rule 5 required that the record on appeal be filed before Rule 4(c) required the filing of a notice of appeal in the trial court. See Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983) (concurring opinion). While the most recent amendment to Rule 5(b) was aimed at this anomaly, difficulties persist when the postjudgment motion is (1) limited to a single issue, although other errors are to be presented on appeal, and (2) the trial court properly takes under advisement such a motion. In such a situation, counsel for the appellant must lodge the record on appeal within seven months from the date of the original judgment in order to preserve an error not raised in the motion for new trial, even though the time for filing the notice of appeal would not begin to run until disposition of the motion, which under Rule 4(c) could occur more than seven months after entry of judgment. Under the amended rule, however, an appeal from the order disposing of the motion raises not only the issue presented by the motion, but also other issues properly preserved at trial. The time for filing the record on appeal would run from disposition of the motion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN RE: CHANGES TO THE ARKANSAS RULES OF CIVIL PROCEDURE AND THE ARKANSAS RULES OF APPELLATE PROCEDURE
    715 S.W.2d 209
    Supreme Court of Arkansas
    Delivered September 15, 1986
   Per Curiam.

In our per curiam order of July 7, 1986, we promulgated a new Arkansas Rule of Civil Procedure 72, entitled “Suits in Forma Pauperis,” to become effective September 15, 1986. The new Rule 72 was one proposed to us by our Committee on Rules of Pleading, Practice, and Procedure (Civil). Through its reporter, the committee has asked that the rule be withdrawn for further study. We grant the committee’s request; therefore, that portion of our order of July 7,1986, promulgating Rule 72 is rescinded.


text:
    IN THE MATTER OF THE SUPREME COURT COMMITTEE ON RULES OF PLEADINGS, PRACTICE AND PROCEDURE IN CRIMINAL CASES
    Supreme Court of Arkansas
    Delivered May 12, 1986
   Per Curiam.

The Honorable Stevan E. Vowell of Berryville, Arkansas, is hereby appointed to our Committee on Rules of Pleading, Practice and Procedure in Criminal Cases, replacing the Honorable Priscilla Karen Pope of Fayetteville, Arkansas.

The court expresses its gratitude to the Honorable Priscilla Karen Pope, for her faithful service as a member of this committee.

Purtle, J., not participating.


text:
    IN THE MATTER OF THE BOARD OF LEGAL SPECIALIZATION
    708 S.W.2d LXVII
    Supreme Court of Arkansas
    Delivered May 27, 1986
   Per Curiam.

The terms of Mr. Randall W. Ishmael, of Jonesboro, Mr. John A. Lewis, of Fort Smith, and Mr. John Stroud, of Texarkana, as members of the Board of Legal Specialization have expired. Mr. Bill Penix, of Jonesboro, is appointed to replace Mr. Ishmael for District 1. Mr. Charles R. Ledbetter, of Fort Smith, is appointed to replace Mr. Lewis for District 3. Mr. Toney D. McMillan, of Arkadelphia, is appointed to replace Mr. Stroud for District 4.

The court expresses its gratitude to the outgoing members of the Board for their faithful service.

Purtle, J., not participating.


text:
    IN THE MATTER OF THE BOARD OF LEGAL SPECIALIZATION
    Supreme Court of Arkansas
    Delivered July 7, 1986
   Per Curiam.

Pursuant to the Arkansas Plan of Specialization approved July 12, 1982, the following persons are named to the Advisory Commission for three year terms:

Dr. Jim Sloan, of Little Rock, Arkansas.

Fred I. Brown, Jr., of Little Rock, Arkansas.

In addition, Mrs. LaVerne Feaster of Little Rock, Mr. George L. McClure of Malvern, and Mrs. Carol Williams of Little Rock are reappointed for three year terms.

The terms of Rev. James Burns and Mr. D.L. D’Auteuil have expired. This Court expresses its gratitude to Rev. Burns and Mr. D’Auteuil for their service.


text:
    IN THE MATTER OF THE BOARD OF LAW EXAMINERS
    713 S.W.2d 241
    Supreme Court of Arkansas
    Delivered July 21, 1986
   Per Curiam.

The Honorable Philip E. Dixon is hereby appointed to serve as a member of The Board of Bar Examiners for the examination to be given in July 1986.


text:
    IN RE: ARKANSAS SUPREME COURT BOARD OF CERTIFIED COURT REPORTER EXAMINERS
    Supreme Court of Arkansas
    Delivered June 23, 1986
   Per Curiam.

The Honorable Jack Lessenberry, Circuit Judge, and Ms. Maude Parkman, of Little Rock, are hereby appointed to three year terms as members of the Board of Certified Court Reporter Examiners. Judge Lessenberry will replace the Honorable Darrell Hickman, Justice, Arkansas Supreme Court, and Ms. Parkman will replace Ms. Marjorie Gachot, of Little Rock.

The court expresses its gratitude to Justice Hickman and Ms. Gachot for their faithful service on the Board of Certified Court Reporter Examiners.


text:
    IN THE MATTER OF THE CLIENT SECURITY FUND
    711 S.W.2d 836
    Supreme Court of Arkansas
    Delivered July 14, 1986
   Per Curiam.

The Honorable Dewain W. Hodge, of Waldron, Third Congressional District, is hereby appointed to our Committee on the Client Security Fund for a term expiring June 30, 1991.

The court expresses its gratitude to the Honorable Robert Cloar, of Fort Smith, for his faithful service as chairman of this committee.


author: English, C. J.

text:
    Hurley vs. The State.
    1. Criminal Practice.
    Under our statute, service of a copy of the indictment on the accused while he is in prison, and in the absence of his counsel, is sufficient, and the same is true as to the jury list, if, under the code practice, he is entitled to the latter.
    3. — Objection to the panel should be taken by motion to set it aside.
    3. — The erroneous rejection of a talesman is not a ground for new trial; it is in the discretion of the court to excuse a talesman for any ground deemed sufficient, without prejudice to the accused.
    4. Evidence : Secondary.

    When the substance of the testimony of a witness before the committing magistrate was, by consent of defendant’s counsel, taken down by the attorney for the state, and read to and subscribed by the witness, in the presence of the accused, and when he had an opportunity of cross examining, and the witness was out of the jurisdiction at the time of the trial, the deposition may be read as secondary evidence, without any violation of the rule that “ the accused shall be confronted by the witnesses against him.”

      5. — Objections to testimony should be specific.

    When no specific objection is made to the competency or relevancy of' the testimony, this court will not attempt to pass upon it.
    6. Criminal Practice : To what papers the jury entitled.

    Upon retiring for deliberation, the jury may take with them, and read,, all papers that have been received in evidence in the cause, and it is in the discretion of the court to permit them to take the instructions.
    7. Instructions.
    An instruction by the court, though it may be unnecessarily long and redundant, and a portion of it argumentative for the purpose of comparing the relative value of direct and circumstantial testimony,, and to some extent abstract, such parts being sufficiently qualified by other instructions, will be sustained, if, upon the whole, the charge seems to have been fair, impartial, and composed of principles of law expressed in substantially correct terms.
    8. Joint Indictment: Proof under, where the accused sever at the trial-

    Where two persons are jointly indicted for murder, and sever at the trial, it is sufficient to prove the guilt of the one on trial, though, the j ury may have a doubt as to that of the other.
    9. Instruction.
    The refusal of the court to give an instruction that is not applicable to-the indictment is no ground for new trial.
    10. Presumptions: In favor of the circuit court.

    In the absence of any- showing to the contrary, it must be presumed by this court that the oath was administered to the jurors in proper form.
    11. Jurors: Plow talesman sworn.

    When the regular panel is exhausted, and the deficiency of jurors is-supplied by talesmen, they may be sworn separately as they are selected. <

    12. — Clerical error as to name of, how corrected.

    When it appears that a juror belonged to the regular panel for the term; that the ticket upon which his name was written before drawing contained his proper name, and that by a clerical misprision, the clerk entered his name erroneously in the record of the proceedings, the error may be corrected by the court on the motion of" the attorney for the state.

      APPEAL from Washington Circuit Court.
    Hon. E. D. Ham, Circuit Judge.

      J. D. Walker, for appellant.

      John B. Montgomery, Attorney General, contra.

   English, C. J.

Patrick Hurley and James. Hurley were •jointly indicted in the Washington'circuit court, for murdering John Schiner, by shooting him with a gun. They severed, and James Hurley was tried on the plea of not guilty, verdict of murder in the first degree as charged, motion for new trial overruled, bill of exceptions, sentence of death and appeal.

Twenty-two grounds for a new trial were assigned in the motion :

I. That the court compelled the appellant to go to, trial-without being served, according to law, with a copy of the indictment.

The statute provides that: “ It shall be the duty of the clerk of the court in which an indictment against any person for a capital offense may be pending, whenever the defendant shall be in custody, to make out a copy of such indictment and cause the same to be delivered to the defendant or his counsel, at leastforty-eight hours before he shall be arraigned on such indictment, but the defendant may, at his request, be arraigned and tried at any time after the service of such copy.” Gantt’s Dig., sec. 1825.

It appears of record that the appellant was arraigned, and pleaded not guilty, Sept. 29, 1870. It appears from the bill of exceptions, that the clerk made and delivered to the sheriff a certified copy of the indictment, which was delivered to the appellant in person, at 5 o’clock P. M., Sept. 26, 1870, in the absence of his counsel, and that the appellant remained in prison, without an interview with his counsel, until he was brought out for arraignment and trial. The indictment was found at the previous term of the court.

The objection seems to be, that the copy of the indictment was served on the appellant when he was in prison, and in the absence of his counsel. Under the statute, the copy may be delivered-to the prisoner or his counsel. If delivered to the prisoner, the statute does not require it to be done in the presence of his counsel, nor that the prisoner shall be brought into court to be served with the copy. If between the time of the service of the copy and the arraignment, the prisoner has had no opportunity of consulting with counsel, the court has the discretion to allow him reasonable time for that purpose be. fore requiring him to plead to the indictment, and this is usually done. But the point here seems to be that he was served in the prison, and in the absence of his counsel, and ’there'was no error in this.

II. The second ground assigned in the motion for a new-trial is, that the court erred in compelling the appellant to go to trial without his having been served in accordance with law with a list of jurors properly and legally selected for the trial •of the cause.

It appears from the bill of exceptions that when the appellant was brought into'court for trial, he objected to the progress of the cause, because he had not been served in accordance with law, with a copy of the venire. In support of the objection, he proved by the sheriff that at the time he was served with a copy of the indictment, as above stated, he was also served with a certified list of the twenty-four jurors, selected, and impaneled for the term, in the manner prescribed by the code, and the court overruled the objection and directed the trial to proceed.

Any objection to the panel should have been taken by-motion to set it aside. Anderson v. The State, 5 Ark., 444.

If, under the code practice, the appellant was entitled to a list of the jurors, as he was under the former practice (Gould’s Dig., ch. 52, sec. 155, 156), and as to which we express no opinion, as the question is not raised, it is no valid objection that the list was served on him when in prison and in the absence of his counsel, which seems to be the matter of complaint in this case.

III. That the court erred in deciding that one O. S. Darling, who had been summoned by the sheriff as juror, was disqualified to be a juror.

It appears from‘the bill of exceptions (No. 2) that after the regular panel had been exhausted by challenges, etc., without making up a jury, Darling, with others, was brought in by the sheriff as a talesman, and being questioned on oath touching his competency, stated that he was disfranchised by the laws of Missouri, from whence he came to Arkansas in September, 1868. That the reason why he thought he was disfranchised by the laws of Missouri was, that the registrars there had refused to let him vote. He had served in the confederate army, and had never advocated or voted for reconstruction anywhere. Had lived in Washington county since September, 1868; had never been convicted of any crime, nor held an office before the war, nor taken any oath before or since the war to support the constitution or government of the United States, except an oath which he took near the close of the war ; had never engaged in uncivilized warfare, etc., and was not upon the grand jury that found the indictment in this case, etc. Upon this examination, the court decided that he was not competent to serve as a juror, and appellant excepted.

A juror must be an elector. Gantt’s Dig., sec. 3673. By a clause in the constitution of 1868, as originally framed, a person disqualified as an elector or from holding office in the state from which he came was not permitted to register, vote, or hold office in this state. Clause 2d, sec. 3, art. VIII.

Whether Darling was legally disfranchised by the laws of Missouri, we cannot say, nor do we think the court below could have decided with an assurance of being right, for the franchise laws of Missouri were not introduced in evidence. Darling’, however, stated that he had been refused registration in Missouri, and the court, perhaps, thought it safer to reject than to admit him as a qualified juror.

But whether the court was right or wrong in this, it'is not material to decide, for if wrong, the erroneous rejection of a talesman would be no sufficient cause for granting the appellant a new trial. He had no legal right to have that particular person as a juror. The court might have excused the talesman from serving on the jury for any cause deemed sufficient, in its discretion, without legal prejudice to the appellant.

We have not overlooked the provision of the code, that decisions of the court upon challenges to the panel, of for cause, etc., shall [not be subject to exception (Gantt’s Dig., sec. 1978), but we have no occasion, in this case, to pass upon the effect or. constitutional validity of this provision of the code.

IV. That the court erred in permitting the state to read in evidence to the jury the deposition of Thomas Bevens.

The testimony of Bevens was taken before the committing magistrate, in the presence of the appellant, reduced to writing by one of the counsel for the state, by agreement with the counsel for appellant, read over to the witness, sworn to and subscribed by him, etc. The precise language used by the witness wras not written, but the substance of his testimony was taken down. He had become a nonresident of the state before the trial, and the prosecuting attorney had been unable to procuré his attendance.

These were the material facts about this deposition, proven to the court when it was offered in evidence, as shown by the bill of exceptions. (No. 3.) The court permitted the deposition to be read to the jury, against the objection of the appellant.

It is a provision of the constitution of the United States, and of the constitution of the states generally, that in criminal prosecutions the accused “ shall be confronted with the witnesses against him,” or as expressed in our bill of rights -of 1836, “ to meet the witnesses face to face.” It is remarkable that a similar provision is not to be found in the constitution of 1868, which was in force when this cause was tried below.

But the admission of the deposition of Bevens was no violation of this old landmark of the criminal law. He had been legally sworn and examined before the committing magistrate, in the presence of the appellant, and where he had an opportunity of cross examination, his testimony had been reduced to writing, read to and subscribed by him, and delivered to the clerk by the magistrate, and the witness was-out of the jurisdiction of the, court when his deposition was offered in evidence on the trial, and was admissible as secondary evidence. 1 Greenl. Ev., sec. 11; Bostick v. The State, 3 Humph., 344; State v. Valentine, 7 Iredell, 224; Pope v. The State, 22 Ark., 372.

Y. That the court erred in refusing to permit to be read to the jury, the evidence of John Morrow, as contained in the last bill of exceptions in the case of The State v. Patrick Hurley, jointly indicted with appellant.

This is a mere statement in the motion for a new trial, and it is not shown by bill of exceptions that such evidence was offered and excluded.

YI. That the court erred in admitting the testimony of Hugh Glass, as set out in bill of exceptions No. 5.

The bill of exceptions does not show that any specific objection was made to the competency or relevancy of the testimon}r of this witness, nor has the counsel for appellant referred, in his brief, to this point. We are left to conjecture what particular objection was made to the testimony of Glass in the court below, and we are not disposed to attempt to-decide conjectural questions. Some of the facts stated by Glass may have been remote from the issue, or immaterial, but if so, we do not see how they were prejudicial to the appellant.

VII. That the court erred in permitting the jury, when they retired to consider of their verdict, to take with them the deposition of Thomas Bevens.

The deposition of Bevens was read in evidence,- as above shown.

It appears from the bill of exceptions (No. 4) that after the cause was argued, and the charge of the court given to. the jury, and when they were about to retire, the court detached the-deposition of Bevens from other depositions, etc., returned by the committing magistrate, which had not been read in evidence, and delivered it to the jury, and they took it with them on retiring, against the objection of appellant.

Upon retiring for deliberation, the jury may take with them all the papers which have been received as evidence in the cause. Gantt’s Dig., p. 422, sec. 1942; Atkins v. State, 16 Ark., 590.

VIII. That the deposition of Bevens was read by the jury during their retirement, in the absence of the' appellant.

The deposition having been read in evidence to the jury, and the court haying permitted them to take it with them on retiring to consider of their verdict, they had the right to read it, and the appellant had no right to be present.

IX. X, XI, XII, XIII, XIV. The ninth, tenth, eleventh^ •twelfth, thirteenth and fourteenth grounds, assigned in the motion for a new trial, relate to the 'instructions given and refused by the court to the jury.

The court, of its own motion, gave to the jury a written charge of considerable length, and which we deem it unnecessary to copy. The court told the jury in substance, that the appellant (with his brother, Patrick Hurley) was indicted for murder in the first degree; stated the substance of the indictment, defined that grade of ofíense very nearly in the language of the statute, informed the jury of the material facts necessary to be proven by the state, made some remarks upon the law of conspiracy, and of principals in the crime of murder, called the attention of the jury to the fact, that the killing of Schiner, and that he came to his death by violence was not controverted, and that the state had attempted to connect the appellant with the killing by circumstantial evidence only, and then proceeded to instruct the jury in relation to the character and weight of such evidence, very much in the language of the text books, cautioning the jury that they could not convict the defendant unless satisfied by the evidence of his guilt beyond a reasonable doubt, and explaining the legal meaning of such doubts.

It appears from the bill of exceptions that the counsel of the appellant made general objections to the charge; such as that it was redundant, argumentative and abstract, especially that portion of the charge relating to conspiracy.

That the charge was unnecessarily long, superabundant, may be true, but we are not aware that we have the power, or that it is proper for us to undertake to prescribe exact limits for the charges of circuit judges in murder cases, though we think they should be as brief as the circumstances of the case will admit, concise, clear and comprehensive.

It is also true that a portion of the charge was argumentative, but the judge was comparing the relative yalue of direct and circumstantial evidence, and arguing as the text writers do, that if direct evidence, or eye-witnesses were required to convict persons of crime, many secret crimes would go unpunished. The judge made no argument, however, tending to induce the jury to convict the appellant upon the circumstances in proof before them. He stated, argumentatively, merely, that which is the law, that where the corpus delicti is proven, the guilty agency of the accused may be established by circumstantial evidence.

It may be, that portion of the charge relating to the law of ■conspiracy was, to some extent, abstract, though there were two persons charged with the murder, and some circum.stances in evidence tending to connect them in a common criminal purpose and act, but if there was anything objectionable in this portion of the charge, it was amply qualified by several instructions moved for appellant on the same subject and given by the court.

Upon the whole, the charge seems to have been fair, impartial, and made up of principles of law expressed substantially correct.

Ten instructions were asked for appellant, which were nearly as “rendundant” as the charge of the court; all of which were given but the ninth and tenth.

'The ninth was: “That if the jury believe from the evidence in this case, that Thomas Bevens, or any other person, mid James Hurley or Thomas Bevens and either James Hurley or Patrick Hurley, killed John Schiner, mentioned in said indictment, but cannot tell from the testimony and me not satisfied which two of the three did the killing, or were connected therewith, they should find the defendant not guilty.”

It was not necessary for the state to prove that any two persons .killed Schiner, or. were criminally connected with the killing. It was sufficient for the state to prove that appellant did the killing, or that some other person, no matter who, committed the murder, and that appellant was present, aiding, abetting or assisting in the perpetration of the crime.

True, the appellant and Patrick Hurley were jointly indicted for the offense, but if they had been tried together, one of them might have been acquitted and the other convicted. But they severed and it was sufficient, on the trial of the appellant, to prove his guilt, though the jurj’ might have been in doubt as to whether Patrick Hurley, Bevens, or any other person implicated by the evidence, had a criminal agency in the commission of the murder. Gantt's Dig., secs. 1237-8; Dennis v. State, 5 Ark., 252. The instruction was properly refused.

The tenth was: “ That in this cause the question as to whether the defendant is guilty of being accessory after the fact to the murder of John Schiner does not arise, he not being charged in the indictment against him of that offense.”

We are at a loss to conjecture why this instruction was asked. The appellant was indicted as a principal, and not as an accessory after the fact, and was not, and could not have been convicted upon the indictment, as an accessory after the fact. We cannot see how the refusal of this instruction could possibly have been prejudicial to the appellant.

XY, XYI. Fifteenth, that the verdict was contrary to law ; and sixteenth, that it was contrary to evidence.

The verdict was in good form, and responsive to the indictment. The indictment charged appellant with murder in the first degree, and the verdict was : “ We, the jury, find the defendant, James Hurley, guilty of murder in the first degree in the manner and form as charged in the within indictment.”

Schiner seems from the evidence to have been the solitary occupant of a cabin near Fayetteville. On the morning of the 14th of December, 1870, he was found lying dead near his house, and the falling snow was melting on his warm, bleeding body. A large leaden ball had passed through his body, entered his house through a window pane, struck the opposite wall and fallen to the floor or ground. His skull was also fractured. The appellant and his brother Patrick lived at the house of one Morrow, about thirty yards from the cabin of the deceased. By the ball, a gun, ramrod, tracks in the snow, other mute witnesses and circumstances, they were connected with the crime. The jury who tried the appellant had all the facts and circumstances in proof before them. It was their province to weigh them and determine their. sufficiency to establish his guilt. They found him guilty; the presiding judge refused to set aside the verdict, and it is not our province to review the evidence and pass upon its weight.

XVII. That the jury were not sworn in accordance with law, but were illegally sworn.

The record entries show that the jurors were sworn, but the form of oath administered is not set out in the entries, nor in the bill of exceptions. In the absence of any showing to the contrary, it must be presumed that the oath was administered in pfoper form. Greenwood v. The State, 17 Ark., 332.

XVIII. That the jury were not, during the trial of the cause, in charge of the proper officer of court duly sworn in accordance with law.

On this point the bill of exceptions shows nothing. The record entries show, with unusual particularity, that the jurors were placed in charge of a sworn bailiff whenever they left the jury box during the trial.

XIX. That the jury were not sworn all together, and after they weré all selected.

The record entries show that the regular panel was exhausted by challenges, etc., and only part of the jurors obtained. Such as were taken were sworn to try the cause. The sheriff was sent out for talesmen, brought them in, and from them other jurors were selected and sworn; and this process was repeated until the jury was completed, each lot of jurors so obtained being sworn when selected.

The record shows that all the jurors were sworn, but it does not show that the twelve were sworn together, after they were all selected. It was sufficient, we think, that they were all sworn, and not necessary that they should be sworn all together.

XX. That the court refused to permit the jury to take with them, when they retired to consider of their verdict, the instructions given by the court of its own motion, and the instructions given for appellant.

The bill of exceptions shows that when the jury were about to retire to consider of their verdict, the court refused to permit them to take from the bar the written instructions given them by the court. Whether the jury asked permission to take them, or the counsel for appellant asked the permission, does not appear.

By section 11, árt. VII of the constitution of 1868, in all trials by jury, the judges were required to give their instructions and charges in writing. See also Gantt’s Dig., 1930. Under the former practice, the judges gave their charges verbally, or in writing, at their pleasure. If exceptions were taken to them they were reduced to writing, and set out in the bills of exception. Instructions moved by the parties .were generally reduced to writing, though sometimes moved verbally, and reduced to writing if made the subject of exceptions. In taking bills of exception, controversies frequently arose as to the precise language employed in verbal instructions. It may perhaps have been to prevent such controversies, that the clause in the constitution referred to was framed. Be this as it may, we have no statute nor are we aware of any absolute rule of practice, requiring the judge to permit the jury to take with them, when they retire to make up their verdict, the instructions of the court. We think it a matter of discretion with the judge. If he does not, for any cause deemed sufficient, permit the jury to take them, and they fail to remember them, or are in doubt about them, they can require the officer in charge of them to conduct them into court, and ask that the instructions, or any part of them, be repeated to them. Gantt’s Dig., sec. 1948.

XXI, XXII. The twenty-first ground assigned in the motion for a new trial is: .

“That in the -record and proceedings of this cause, there is manifest error in the action of the court in the returning of the verdict by the jury.”

And the twenty-second is:

“And because said proceedings and verdict of the jury are in utter violation of law.”

The record shows that the jury were ■ conducted into court by the bailiff in charge of them, and in the presence of the appellant and his counsel, delivered the verdict copied above. That they were polled at the request of appellant, and severally assented to the yerdict.

The record also shows that Wm. A. Hunter, one of the jurors, on being called from a list of jurors in which his name had 'been incorrectly written Hunten instead of Hunter, stated his true name tobe Hunter: and it appearing to the satisfaction of the court that said Hunter belonged to the original panel of jurors for the term, that the ticket on which, his name was written before drawing contained his proper name, and that by a clerical misprision his name was written, in an entry of the proceeding of Sept. 29, 1870, Hunten; on motion of the state, the entry was corrected by inserting his proper name.

In all this we see no irregularity of which the appellant had any cause to complain; nor in the whole record do we find any error for which the judgment should be reversed.

The judgment must be affirmed, and its affirmance properly certified to the court below and to the Governor of the state.


author: English, 0. J.

text:
    Johnson vs. The State.
    1. Criminal Law : Former jeopardy.

    Where a defendant is tried and convicted of a criminal offense, and a new trial is granted hi m on his own motion, he may he tried again for the same offense.
    2. Criminal Practice : Disposition of a defective plea.

    It is the more regular practice for the court to dispose of a defective-plea on demurrer, than to overrule it on its own motion; but such an irregularity is no cause of reversal.
    3. Criminal Pleading : When a defective plea will he aided hy the record.
    When matter of defense, consisting of steps previously taken in the same cause, is defectively pleaded, the court will take judicial cognizance of the facts, and the plea will be aided by the record.
    4. Criminal Law: Former acquittal hy implication.

    Where the defendant was indicted fcr murder in the first degree, tried and found guilty of murder in the second degree, it was an implied acquittal of the higher grade of homicide, and he could not be again put in jeopardy for that offense; and it is the duty of the court so to instruct the jury, whether the former acquittal is pleaded or not.
    5. — Same.
    If, by section 1972 of Gantt’s Digest, it was intended to establish a different rule, it is in conflict with the bill of rights contained in the constitution, and the section must be construed and administered by this paramount constitutional limitation.
    APPEAL from Ciarle Circuit Court.

      Hon. George A. Kingston, Circuit Judge.

      D. J. Peshall, for appellant.

      S. P. Hughes, Attorney General, contra.

   English, 0. J.

Alexander Johnson, the appellant, was indicted for murder in the Clark circuit court. There was but one count in the indictment, charging him with murder in the first degree. He was tried on the plea of not guilty, and the jury returned a verdict of murder in the second degree, and fixed his punishment at imprisonment in the penitentiary for twenty-one years. He filed a motion for a new trial, on the ground that the officer in charge of the jury permitted them to separate, etc. The motion was sustained, and a new trial granted by the court. He was again tried at the next term, the jury found him guilty of murder in the first degree, a motion for a new trial was overruled, and he was sentenced to be hung on the 27th of March, 1874, but the sentence was suspended by the allowance of an appeal by one of the judges of this court.

1. Before appellant was put on his second trial, he filed a plea in bar of the whole indictment, averring the former trial on the indictment, the verdict of guilty of murder in the second degree, the granting of a new trial, and that he had once before been in jeopardy for the offense charged in the indictment, and praying to be discharged.

The court, of its own motion, overruled this plea.

It is very well settled that where a defendant is tried and convicted of a criminal offense, and anew trial is granted him on his own motion, he may be tried again for the same offense.

It is true that, by a constitutional provision as well as by ■the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford-him the opportunity of another trial. Stewart v. The State, 13 Ark., 747.

Whether the appellant could be put on a second trial for murder in the first degree, after, by the first verdict, he had been impliedly acquitted of that grade of offense, we shall presently see. But that he could be tried again for murder in the second degree, of which he had been convicted, and a new trial granted at his own request, and for his own benefit, there is no doubt!

The bill of exceptions states that the court, of its own motion, overruled the plea. This is not the usual mode of disposing of a bad plea. It would have been more regular to dispose of it on demurrer. Sanger v. State Bank, 14 Ark., 412. But a technical irregularity in getting rid of a bad plea is no cause of reversal. If the court had merely disregarded the' .plea, and made no disposition of it whatever, the judgment would not be reversed and the cause remanded merely to get rid of a bad plea. Brearly v. Peay, 23 Ark., 172.

2. The appellant, before he was put on his second trial, and after the plea of once in jeopardy was overruled, filed the following plea of former acquittal:

The defendant pleads that he has been acquitted, of- the offense of murder in the first degree, as alleged in the bill of indictment, by the judgment of the Clark circuit court, entered on the 30th day of October, 1873.”

To this plea the state demurred, on the following grounds:

1. The plea does not show how, or in what manner the defendant has been put in jeopardy of his life.

2. It does not set out the record of the former indictment:

3. It does not propose to verify the same by the record.

4. It is for other reasons insufficient in law.

The court sustained the demurrer.

This plea was a loose attempt to set up the implied acquittal of the appellant of the charge of murder in the first degree, by the verdict of guilty of murder in the second degree, rendered in the first trial of the cause. The plea, however, substantially follows the form prescribed by the Code, for the record entry of such pleas (Gantt’s Dig., sec. 1851), and was-aided by the record of all the previous steps which had been, taken in the cause, which was before the court.

The defense attempted to be set up by the plea was a matter of record in the cause which the court was proceeding to-try; and the court was cognizant of all its proceedings in the premises. Atkins v. The State, 16 Ark., 574. The court sustained the demurrer to the plea, not, perhaps, because of its-want of form, but for the reason that, in its judgment, the matter of defense intended to be interposed by the plea, was no-bar to the second trial for murder in the first degree, for the court afterwards, in its charge to the jury, told them, in effect, that the appellant might be convicted of murder in the first-degree, and refused to instruct them to the contrary at the instance of the appellant.

The record of the former implied acquittal of the appellant of murder in the first degree being before the court, in the very cause which it was trying a second time, it was the duty of the court to tell the jury that they could not find him guilty of that grade of offense, if such be the law, even if the appellant had not interposed a plea of former acquittal. Atkins v. The State, supra.

And this, for the first time, brings this question fairly before this court: Where a person indicted for murder in the first degree is convicted of murder in the second degree, and obtains a new trial, can he be tried a second time for the higher grade of offense ?

There are two grades of murder under our statutes; murder in the first degree, which is defined, and punishable by death; and murder in the second degree, punishable by imprisonment in the penitentiary for not less than five and not more than twenty-one years. Gantt’s Dig., secs. 1253-4, 1262-3. In all cases of murder, on conviction, the jury are required to find by their verdict whether the accused is guilty of murder in the first or second degree. Id., sec. 1957. There are also two grades of manslaughter which are defined by the statutes: Voluntary, punishable by imprisonment in the penitentiary for not less than two, nor more than seven years, and involuntary, punishable by like imprisonment for a period not exceeding twelve months. Id., sec. 1264 to 1278. Upon an indictment for an offense consisting of several degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment. Id., 1961. .The appellant being indicted for murder in the first degree, could have been convicted of any degree of homicide warranted by the evidence. Id., 1962.

By the verdict of the jury, rendered on the first trial, he was convicted of murder in the second degree, and impliedly acquitted of the higher grade of offense, murder in the first degree. If this verdict had not been set aside, on his motion,, he certainly never could have been tried again for the higher offense. Did the granting of a new trial, at his request, subject him to be tried again for murder in the first degree, of which he had, in legal effect, been acquitted by the first verdict ?

A clause in the ninth section of the bill of rights of the constitution of 1868, declares that no person, after having been once acquitted by a j ury for the same offense, shall be again put in jeopardy of life or liberty.”

This is equivalent to the 12th section of the bill of rights, of the constitution of 1836, which declares: “ That no person shall, for the same offense, be twice put in jeopardy of life or limb.”

A similar provision exists in the constitution of the United States, and in the constitutions of most of the states. But this rule, says Mr. Greenleaf, has a deeper foundation than mere positive enactment, it being, as Mr. Justice Story remarked, imbedded in the very elements of the common law, and uniformly construed to present an insuperable barrier to a second prosecution, where there has been a verdict of acquittal or conviction, regularly had, upon a,sufficient indictment. 3 Greenl. Ev., p. 34, sec. 35.

In The State v. Norvill, 2 Yerger, 24, the defendant was indicted for murder, and was found not guilty of murder, but guilty of' manslaughter. This verdict, though no judgment was entered upon it, was held to be a bar to a second indictment for murder, the first indictment being good, and the judgment upon it improperly arrested.

In Campbell v. The State, 9 Yerger, 333, the indictment contained three counts for 'larceny. The jury found the defendant not guilty as charged in the first and third counts, but guilty as charged in the second count. He moved for a'new trial, and the court set aside the whole verdict, and ordered him to be tried a second time on the whole indictment, and he was found guilty on the third count, and a motion in arrest of judgment was overruled. The supreme court reversed the judgment, and ordered the accused discharged, on the ground that the first verdict of acquittal on the third count was a bar to a second trial on the same count.

In Slaughter v. The State, 6 Humph., 412, the accused was indicted for murder, and the jury found him not guilty of murder, but guilty of voluntary manslaughter. . On his motion a new trial was granted, and it was held that he could not be put upon a second trial for murder, and that the court should have so instructed the jury.

In Hurt v. The State, 25 Miss., 378, the accused was indicted for murder, and the jury found him guilty of manslaughter in the third degree. A new trial was refused, and on error the judgment was reversed, and the prisoner discharged, on the grounds that a second indictment for manslaughter (the first being bad) was barred by limitation, and that the verdict of. manslaughter on the first indictment was an acquittal of the charge of murder, and that he could not be tried again for that offense.

The court said :• “ A verdict of a jury finding a party, put upon his trial for murder, guilty of manslaughter in the third degree, must of necessity operate as an acquittal of every crime of a higher grade of which he might have been convicted under the indictment upon which the issue was made; otherwise, the party, after undergoing the sentence of manslaughter, might be put upon his trial for the charge of murder, which would then be only postponed, and not decided by the verdict of manslaughter. The jury, in such case, render two verdicts:. one acquitting -the accused of the higher crime charged in the indictment, the other finding him guilty of an inferior crime. They must first determine his guilt or innocence upon the charge made by the indictment, before proceeding to consider whether he is guilty of an inferior crime. The verdict of manslaughter is as much an acquittal of the charge of murder, as a verdict pronouncing his entire innocence would be, for the effect of both is to exempt himjrom the penalty of the law for such crime.”

The court further said: “But it is said that such verdict only operates as an acquittal while it is permitted to stand as part of the action of the court below, and as it has been set aside by this court upon the prisoner’s own application, the cause must be treated in all respects as if no trial bad taken place. In support of this position, authorities have been cited holding, that when the judgment upon a trial for murder is arrested, the party may be remanded and again indicted for the same offense. The authorities doubtless announce the law correctly, but they have no application to the question under consideration. The judgment is only arrested in any case where the verdict is against the party. He would certainly never move, neither would the court for a moment entertain such motion in arrest of judgment, when the verdict was in his favor. Here the verdict of the jury acquitted the party of the crime expressly charged in the indictment, and at the same time exempted him from the penalty of the law for its supposed commission. He could not move in arrest of the judgment on this part of the verdict, because the judgment corresponding, in contemplation of law, with the verdict in this respect, must also have been one of acquittal of the charge of murder. "Whether this judgment was in fact pronounced by the court, as ought to be the practice, or attached by mere operation of law to the verdict, it was bound to be in the party’s favor, and it could not, therefore, be arrested or set aside on his motion.”

In Brennan et al. v. The People, 15 Ill., 512, a number of persons were indicted for murder. Eour of them were tried on the plea of not guilty, and the jury found three of them guilty of murder, and the fourth, Ryan, guilty of manslaughter only. The defendants moved for a new trial, which was granted. They were tried again, and all of them found guilty of murder, and the case was taken, by writ of error, to the supreme court of Illinois. After deciding other questions in the case, the court said:

“Was the prisoner Ryan properly put upon his trial a second time for the murder of Story? An indictment for mur■der embraces the charge of manslaughter. The lesser is included in the greater accusation. On such an indictment, the jury may find the prisoner guilty of manslaughter. And such a finding amounts to an acquittal of the charge of murder. The finding of the inferior is necessarily a discharge of the superior offense. Ryan was regularly put upon his trial ■on the indictment, and was found guilty of manslaughter. .In contemplation of law, the jury rendered two verdicts as to him —• one acquitting him of the murder of Story, and the •other convicting him of the manslaughter of Story. He was Thus legally tried for the offense of murder and acquitted. It is perfectly clear that he could not again be put in jeopardy ■on the same charge, unless that acquittal was set aside at his instance. A verdict either of acquittal or conviction is a bar to a subsequent prosecution for the same offense, although no judgment has been entered upon it. Mount v. The State, 14 Ohio, 295; The State v. Norvell, 2 Yerger, 24; Hurt v. The State, 25 Miss., 378. It does not appear from the record that “Ryan has ever waived the benefit of the verdict of acquittal. It is true that he united with the other prisoners in asking for -a new trial, but the application as to him must be regarded as extending only to the charge upon which he was convicted. He had no occasion for another trial except as to the charge •of manslaughter. Being legally acquitted of the charge of murder, he surely did not desire that to be again investigated. It is not to. be presumed that he would voluntarily place himself in peril upon a charge on which he had already been tried and acquitted. Even if the court, upon his motion, •could open the whole case, the record does not show that such power was either invoked or exercised. The application for :a new trial did not necessarily relate to the charge upon which he was acquitted. It naturally referred to the charge on which he was convicted. Nor did the court, in terms, set aside the entire finding of the jury. It simply granted the-prisoner a new trial. The order was no broader than the application. There were two distinct findings as to Ryan, and, therefore, there was not the least necessity for disturbing the-one acquitting him of murder. The one might be set aside, and the other allowed to stand. The verdict was not an entire thing which should wholly stand or fall. This view gives full effect to the order of the court. There was still a charge upon which Ryan could again be tried. This vie w of the question is sustained by adjudicated cases,” etc.

The court cited, with approval, Campbell v. The State, 9 Yerger, 333, and other cases, and reversed the judgment as to Ryan, and remanded the cause with directions that he be tried again for manslaughter, and affirmed the judgment as to the-other three prisoners.

This case was approved and followed in Barnett v. The People, 54 Ill., 325.

In Jones et al. v. The State, 13 Texas, 168, the prisoners-were indicted for murder in the first degree ; they were tried on the plea of not guilty, and found guilty, by the jury, of murder in the .second degree. A new trial was granted on their motion, and they were tried a second time and convicted, for murder in the first degree. On appeal to the supreme-court of Texas the judgment was reversed. Mr. Justice Lipscomb, who delivered the opinion of the court, after examining-the authorities, said: “The result of our investigation is, that both on principle and the authority of adjudged cases,, the appellants, after having been acquitted of murder in the first degree, and found guilty of murder in the second degree,, could not be legally tried and convicted of murder in the first degree, and that the verdict so finding them cannot stand as-the basis of a judgment and execution thereon.”

In The State v. Tweedy, 11 Iowa, 351, the accused was indicted for murder in the second degree, and found guilty of manslaughter. The judgment was reversed on appeal, and the cause remanded for trial again. On the second trial, the court refused to instruct the jury that he had once been acquitted of murder, and could only be tried again for manslaughter.

The case went again to the supreme court, and i.n a very able review of the authorities by Mr. Justice Wright, it was held, that the verdict of manslaughter, on the first trial, was an acquittal of murder in the second degree, and that the prisoner could not again be put in jeopardy for that offense. The court said: “ When the prisoner moved for a new trial, and appealed to this court, he sought to be relieved of a judgment against him for manslaughter. He had no complaint to make that the jury had not convicted him of the offense of murder. If, however, he might properly be subjected to a second trial for murder, then he is compelled to submit to a verdict which he may deem ever so erroneous, lest by disturbing it, when insisting on his legal rights, he may place himself again in jeopardy. When a jury has once returned a verdict of guilty as to the lower offense, the prisoner should not, in our opinion, be placed in a position of additional hazard by attempting to be relieved of the erroneous judgment. It is settled upon authority that if he obtains a new trial, he may be again tried for the offense of which he was convicted. It is a very different thing, however, when it is sought to try him for an offense of which he was not convicted, and which was not, necessarily, in the verdict of guilty. ”

In The State v. Ross, 29 Mo., 32, Ross was indicted by a single count for murder in the first degree, tried on the plea of not guilty, and verdict of guilty of murder in the second degree. On an appeal to 'the supreme court of Missouri, the judgment was reversed, and the cause remanded for a new trial. Ross filed a plea, setting up the former implied acquittal of murder in tlie first degree as a bar to any further prosecution for that grade of offense. A demurrer was sustained to the plea, and on a second appeal, the supreme court held, in a well considered opinion, reviewing the authorities (Scott* J., dissenting), that the verdict of murder in the second degree was an acquittal of murder in the first degree, and that the accused could not be tried again for that grade of offense. See also State v. Ball, 27 Mo., 327; 1 Bishop Cr. L., sec. 676.

In Jordan v. The State, 22 Ga., 558, the prisoner was indicted for murder, and the jury found him guilty of manslaughter, and the court held that the verdict was an acquittal of murder, and that a new trial could not be granted so as to subject him to a second trial for murder.

In State v. Lessing, 16 Minn., 75, the indictment was for murder in the first degree, and contained a single count. On a plea of not guilty, the defendant was tried and convicted of murder in the second degree; and the court held that the verdict was equivalent to an express acquittal of murder in the first degree, and a bar to any subsequent prosecution against him for that grade of offense.

In Gunther v. The People, 24 N. Y., 100, the indictment contained nine counts for embezzlement, and others for larceny, and the verdict was guilty of embezzlement, which was held to be equivalent to an acquittal of the larcenies charged, and a bar to any subsequent prosecution. The court said: “ If the jury find the prisoner guilty on one count, and say nothing in their verdict concerning the other counts, it will be equivalent to a verdict of not guilty on such counts.”

See also, to the same effect, Weinzorpflin v. The State, 7 Blackf., 136.

So, in Clem v. The State, 42 Ind., 420, held, that if upon an indictment for murder in the first degree, the defendant, is found guilty of an inferior grade of homicide, without saying anything as to the higher grade, the finding is, by implication, an acquittal of ’the higher grade.

In Morris v. The State, 1 Blackf., 37, Mr. Justice Holman incidentally assumed it to be a general rule, that he who desires a new trial, must receive it as to the whole case; and in the U. S. v. Harding et al., 1 Wall., Jr., C. C., 147, Mr. Justice Oreeb cautioned the prisoners, who had been acquitted of the higher and convicted of the lower offense, that if they insisted on a new trial, he would grant it upon the whole indictment, and their lives might become, on a second trial, forfeit to the law ; but whilst such expressions of these learned judges are entitled to respect, they have not been treated, in the cases which we have cited, as adjudications of the question we are considering.

Mr. Bishop says: “ The waiving of a constitutional right, implied in the making of an application for a new trial, is not construed to extend beyond the precise thing concerning which the relief is sought. If, therefore, the verdict finds a prisoner guilty of part of the charge against him, and not guilty of another part, as, for example, guilty on one count of the indictment, and not guilty on another; or there being one count, guilty of manslaughter, and not guilty of murder ; and a new trial is granted him — he cannot be convicted on the second trial, of the matter of which he was acquitted on the first.” 1 Bishop Cr. L., 4 ed., sec. 849.

The State v. Martin, 30 Wis., 216, is very similar in its main features to the one now before us. Martin was indicted for murder, tried upon the plea of not guilty, and found by the jury not guilty of murder, but guilty of manslaughter in the second degrée. He moved the court to set aside the verdict, and grant him a new trial, on the ground that one of the jurors was not impartial. .'The motion was granted, and on the second trial the jury found him guilty of murder in the first •degree, the court having instructed them that they might so find if the evidence warranted such a verdict. . The case went before the supreme court of Wisconsin on questions of law, which arose on the trial, and among them the one now before us. The court said: “ The doctrine is well settled in this state that courts have the power to grant a new trial after conviction, for a good cause, upon the application of the defendant, and that no principle of the constitution or the common law which is essential to the protection of the rights of the individual is violated thereby. The general rule is that one trial and verdict protect the defendant against any subsequent accusation whether the verdict be for or against him, and whether the court is satisfied with the verdict or not. But a person already convicted may waive the constitutional protection against a second prosecution and ask for a new trial to relieve himself from the jeopardy he is already in. And when he does so, what ought to be considered the extent of his application ? Is it to expose himself to the possible conviction of a charge of which he has been acquitted, or is it to relieve himself of the one of which he has-been convicted ? It would seem that a bare statement of the proposition was sufficient to furnish the proper answer. It is not in accordance with the principles of human conduct for a person to ask a further trial of a charge of which he has already been found guiltless by the verdict of a jury. But he seeks deliverance from one of which he has been convicted, and hence he asks that he may again be put upon trial for this charge. In this case the defendant was expressly acquitted of the charge of murder upon the first trial, and convicted of a lower crime. He asked for and obtained a new trial. A new trial for what ? Of the charge of which he had been convicted, or the one of which he had been acquitted? Is it reasonable to suppose that the defendant asked ■for another trial in order to determine whether he had committed the crime of murder, or was it merely to determine whether he was guilty of manslaughter in the second degree of which he stood convicted ? The answer would seem to be plain upon principle that it was the latter charge alone that he asked to have retried and that his application for a new trial should be held to apply to this, and not to the other crime of which he was acquitted. And this is in accordance with the great weight of judicial opinion upon this subject.”

The court held that the prisoner was illegally convicted for murder on the second trial. That, on the second trial, the inquiry of the jury should have been confined to the crime of which he had been convicted on the first trial.

It is our opinion, upon principle and the great current of adjudications, that the verdict of murder in the second degree, rendered by the jury on the first trial, was equivalent to an acquittal of the appellant of murder in the first degree and a bar to a second trial for that grade of offense.

There is a code provision as follows : “ The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew and the former verdict cannot be used or referred to in evidence or argument.” Gantt’s Dig., sec. 1972.

No doubt that the granting of a new trial upon the application of the accused, on an offense of which he is convicted places him in the same position as if no trial had been had, but if the section of the code above quoted meant to go fur-other and provide that where the indictment charges several offenses or grades of offense, and on the first trial the accused is convicted of one offense or grade of offense, and acquitted of anther, the granting of a new trial places him in the same position as to the offense or grade of offense of which he was acquitted as if no trial had been had, it is in conflict with the clause of the 9th section of the bill of rights of the constitution of 1868, which declares that, “ No person after having been once acquitted by a jury for the same offense shall be again put in jeopardy of life or liberty,” and the section of the code must be construed and administered by this paramount constitutional limitation.

There is a similar statute in Kansas, and in the State v. McCord, 8 Kansas, 232, the defendant was tried for murder and convicted of manslaughter, and upon his motion, a new trial was granted and the court again held that he was to be tried for murder, as if no former trial had been had. The court said that the granting of a new trial was a legislative privilege awarded the accused, and he must take it on such terms as the legislature had thought proper to prescribe. This case is reported in 1 Green. Criminal Law Reports, 406; and is disapproved in a note by the author as contrary to principle, etc.

There is also a similar statute in California, and in the The People v. Gilmore, 4 Cal., 376, it was construed and held not to affect the constitutional protection of the accused against a second trial for an offense of which he had been acquitted. The prisoner was indicted for murder, convicted of manslaughter and a new trial granted. The court held that,' notwithstanding this statute, he could not again be put upon trial for murder.

The judgment must be reversed and the cause remanded with instructions to the court below to grant the appellant a new trial, and that he be tried as if indicted for murder in the second degree: