# Stewart v. State

In Stewart v. State, 13 Ark. 720 (1853), the court's opinion was authored by Chief Justice George C. Watkins, id. at 724.
Supreme Court of Arkansas
13 Ark. 720
Stewart v. State
Appeal from Hot Spring Circuit Court
* Court Documents
* Opinion of the Court
As justly remarked, in the case of Nixon vs. The State, (2 Sm. & Marsh. 507,) by a speedy trial, is intended a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious and oppressive delays, manufactured by the ministers of justice.
The court is of the opinion that the proper construction of section 179, ch. 52, Dig., is that to entitle the accused to be discharged for want of prosecution, there must be, on the part of the State, a failure of three terms to bring him to trial, that is to say, at the end of the second term which shall be held after the finding of the indictment.
Construing the several sections of the statute on the subject together, the court does not favor the opinion that the accused is entitled to discharge, except where the delay is procured by the failure of the judge to bold a term of the court, or for want of time to try him, as would seem to follow from a literal ​construction of section 181; but is inclined to the opinion that the intention of the law is manifested by section 182, to be that the prisoner will be entitled to his discharge, only, where the delay of the State in bringing him to trial, is for want of evidence.
The spirit of the law would seem to be, that, for the prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponement.
In this case, there was a failure to bring the prisoner to trial, at one term of the court, in consequence of an interchange of judges, under existing law, which brought to the court, where the prosecution was pending, a judge who was incompetent to sit in the case. At a subsequent term, the venire, under which the sheriff summoned the petit jurors to try the case, being defective, but amendable, was quashed on the motion of the prisoner, he urging, but the court refusing, a postponement of the cause; and there not being time, before the lapse of the term, to summon a new list, and furnish him with a copy thereof, the requisite number of hours before the trial, the court continued the cause: Held, That the prisoner, under the circumstances, was not entitled to a discharge for a want of prosecution.
Though, in the discretion of the court, a party may have more than one continuance for the absence of different witnesses, or for the absence of the same witnesses, if occasioned by different causes, so as to be within the spirit of the law, yet, in this case, the prisoner having obtained one continuance on account of the absence of his witnesses, and applying for another because of the absence of the same witnesses, assigning, as a cause for their absence, a change in the time of holding the court by act of assembly of which they were alleged not to be advised, but it appearing that the law making the change had been published in the newspapers, &c., and that the facts which the prisoner expected to prove by the absent witnesses, were substantially proven by other witnesses on the trial: Held, That the refusal of the court below to grant the continuance, was no ground of error.
Where the prisoner is furnished with an imperfect list of the jurors, and the court refuses, on his motion, to cause him to be furnished with a correct list, the requisite time before the trial, and forces him into trial without such list, and he excepts to the decision of the court, and rests upon the exception, without moving for a new trial, which is addressed to the sound discretion of the court, this court is bound to presume that he was prejudiced by the denial of a legal right, and for this cause will reverse the judgment.
Upon challenging a juror for principal cause, the party challenging has the right to elect whether the competency of the juror shall be tried by the court or by triers: if by the court, then the trial must be upon the testimony of the juror only, on his voir dire; if by triers, then by other evidence, to the exclusion of the oath of the juror challenged.
When it appears that a juror has formed or expressed an opinion as to any material fact in issue involving the guilt or innocence of the prisoner, the ​law presumes the juror to be incompetent; and that presumption can be removed only by affirmative evidenee that his opinion was not formed on the knowledge of any fact derived from the witness, but from rumor.
Upon such trial, the party may object to the admission of evidence before the triers, or to the instructions of the court, and make them a part of the record by bill of exceptions.
If a party challenge a juror peremptorily when he is not obliged to do so, he waives his exception, and cannot avail himself on error of the exception thus abandoned. And this although he may exhaust his right of peremptory challenges.
The case of Dennis vs. State, (5 Ark. 231,) that the defect in the indictment in failing to set forth the style and term of the court, cannot be objected after verdict, approved. Also the cases deciding that the record must show that the indictment was preferred by a legally constituted grand jury; and where the transcript omits such showing, this court would ex officio issue a certiorari for the affirmance of the judgment. Further, that the circuit court, to which the case was removed on change of venue, may issue a writ of certiorari to the court where the indictment was found, to perfect the record.
Wherever a judgment of conviction, in a capital case, is reversed for error in the proceedings of which, without the statute allowing writs of error, he could not have availed himself by motion in arrest, and which he can only place upon the record by bill of exceptions, and of which he could not have availed himself by motion for new trial at the common law, it is no violation of his constitutional right to remand the cause to be tried again on the same indictment.
Appeal from Hot Spring Circuit Court.
ENGLISH and JORDAN, for the appellant. 1. The transcript does not show that the indictment, on which the appellant was tried and convicted, was found by a competent, or any grand jury. This is a fatal defect, and the objection may be raised on error. 1 Ch. Cr. Law 333. Woodsides vs. The State, 2 How. (Miss.) R. 655. Carpenter vs. State, 4 ib. 163. Thomas vs. State, 5 ib. 20. Tipton vs. State, Peck. (Tenn.) R. 165.
2. The prisoner was, and is, entitled to his discharge, because of the failure of the State to prosecute with that legal diligence required by the statute, which provides that he shall be discharged, unless brought to trial before the end of the second term after indictment found, (sec. 179, p. 414, Dig.,) except in certain cases, (sec. 181, ib.,) and this cause was continued two terms, for ​causes not embraced within the exceptions—the incompetency of a judge exchanging with the regular and competent judge, and the blunder on the part of the prosecution, in issuing an illegal venire. The State vs. Phil, 1 Stew. (Ala.) R. 31, where the prisoner was discharged, under a similar statute.
3. The court erred in overruling the prisoner's motion for a continuance on account of the absence of his witnesses; which was in consequence of a change in the time of holding the court, unknown to them. It would be a misapplication of the rule that every man is bound to know the law, to apply it in this case, and force a prisoner into a trial without his witnesses, because they did not know that the legislature had changed the time of holding the court a week earlier. Courts will, in many instances, relieve against mistakes of law, as well as facts. (Prater, ad. vs. Frazier and wife, 6 Eng. 249.) Though the granting or refusing a continuance rests in the discretion of the court below, that discretion may be overruled by this court, if improperly exercised. Hensley et al. vs. Tucker, 5 Eng. 527. The People vs. Vermilyea, 7 Cow. 108.
4. The prisoner was forced into trial without a list of the venire-men having been previously furnished him: the list furnished him not corresponding with the return to the venire—in some instances, the names being entirely different; in others, only the initial of the given name furnished the prisoner. (Digest, p. 411, sec. 154. 1 Ch. Cr. Law 517. 4 Bl. Com. 351. The State vs. McClendon, 1 Stew. 195. The prisoner was entitled to a list of the jurors summoned to try him, and the challenge by the State of those whose names were omitted, cannot obviate the objection that a true and correct list of jurors was not furnished. The People vs. Bodire, 1 Denio 281. Freeman vs. The People, 4 ib. 9.
5. The court erred in overruling the challenge for cause of two of the jurors, one of whom had formed and the other formed and expressed an opinion as to the guilt or innocence of the prisoner, because they were not impartial jurors, (Bill of Rights, ​sec. 11,) and it did not appear that their opinions were founded on rumor. Sec. 161, ch. 52, Dig.
6. The court erred in refusing the prisoner the benefit of triers to determine the competency of the juror, Isham J. Ready, and in assuming to determine of his competency. A challenge to the favor, as this was, was determined, always, by triers at common law. See 1 Ch. Cr. Law, p. 549 et seq.
The statute (Dig. 412, sec. 412) declares that "all challenges for cause may be tried by the court on the oath of the person challenged, or by triers on other evidence, and such challenge shall be made before the juror is sworn." The competency may be tried by the court, or by triers, who is to make the election? If the court, then the prisoner may be deprived of his common law right of having triers, which is not taken from him by the statute. See Smith's Com. on Const. and Stat. Construction, title Repeal.
That the prisoner was entitled to triers, if he asked them, and did not agree to submit the matter to the court. (See The People vs. Rathburn, 21 Wend. 542.) And the refusal is ground of error. Ib. People vs. Mather, 4 Wend. 229. State vs. Benton, 2 Dev. & Bat. 196. 2 Ire. Dig. 612. 1 Denio 181. 2 Bro. Law Dic. 583, 584.
[Opinion of the court by Chief Justice GEORGE C. WATKINS.]
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