| Ark. | Jan 12, 1914
(after stating the facts). From the facts stated it is manifest that the verdict of the jury has settled the questions raised on this appeal, that there was evidence legally sufficient to support the jury’s finding that the killing was the result of a premeditated intent, and the judgment of the court below on the main case must be affirmed.
Certiorari must be, and is, the appropriate remedy to review the action of the trial court in refusing the petition for writ of error coram nobis. No provision is made by theo statute for an appeal from an adverse ruling by the trial judge on such a petition, and, as in cases of bail, certiorari is the remedy which has been moulded by the law to supply this deficiency. The practice in these cases is well settled by the decisions of this court. In the case of Hydrick v. State, 104 Ark. 43" date_filed="1912-06-03" court="Ark." case_name="Hydrick v. State">104 Ark. 43, it was said: “This court has repeatedly held that after the expiration of the term at which, a judgment of conviction was rendered, the court may, upon proper showing of insanity of the accused at the time of the trial, which was not suggested at the trial, issue tlie writ of error coram nobis for the purpose of inquiring into that question, and to empanel a jury for that purpose. Adler v. State, 35 Ark. 517" date_filed="1880-05-15" court="Ark." case_name="Adler v. State">35 Ark. 517; Howard v. State, 58 Ark. 229" date_filed="1893-11-25" court="Ark." case_name="Howard v. State">58 Ark. 229; State v. Helm, 69 Ark. 167" date_filed="1901-03-23" court="Ark." case_name="State v. Helm">69 Ark. 167; Linton v. State, 72 Ark. 532" date_filed="1904-06-11" court="Ark." case_name="Linton v. State">72 Ark. 532; Ince v. State, 77 Ark. 418" date_filed="1905-06-17" court="Ark." case_name="Ince v. State">77 Ark. 418. We held in Johnson v. State, 97 Ark. 131" date_filed="1911-01-02" court="Ark." case_name="Johnson v. State">97 Ark. 131, that an affirmance by this court of a judgment of conviction did not preclude the trial court from issuing the writ for the purpose of inquiring into the sanity of the accused at the time of the trial.” . In the Hydrick case, supra, the writ was prayed after an appeal to this court had been affirmed, and the action of the trial court in sustaining a demurrer to the petition for the writ was reversed and the cause remanded with directions to overrule the demurrer to the petition.
The trial court was not asked, either at or before the trial of the main case, to empanel a jury to inquire into defendant’s sanity. Such a proceeding is authorized by section 2277 of Kirby’s Digest, which reads as follows: “If the court shall be of the opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until the jury be empaneled to inquire whether the defendant is of unsound mind, and if the jury shall find that he is of unsound mind the court shall direct that he be kept in prison, or conveyed by the sheriff to the lunatic asylum, and there kept in custody by the officers thereof until he is restored, when he shall be returned to the sheriff, on demand, to be reconveyed by him to the jail of the county.” If the issue of defendant’s sanity had been passed upon under the provisions of the section quoted, or by a jury upon the appellant’s trial under the plea of not guilty, then this writ would not lie; but that question was not raised and has not been determined, and we think a showing has been made which authorizes and requires the issuance of the writ to determine defendant’s sanity at the time of the trial. And if, upon the trial of that issue, the jury shall find that the appellant was insane at the time of his trial, then the judgment herein affirmed will be set aside, otherwise it will remain in full force and effect.
We think it proper to mention the fact that the trial was had before a special judge and the motion for a new trial was overruled by him, and the judgment pronounced by him, while the petition was heard by the regular judge, and on the hearing before him he had only the record which we have before us.
Upon consideration of the recitals of facts contained in the affidavits accompanying the petition, the truthfulness of which we can not know, and of the answers of the physicians to the hypothetical questions propounded to them, we conclude that a showing was made which would have authorized ‘the court below to grant the prayer of the petition, and the court’s action in dismissing it is therefore reversed and the cause will be remanded with directions to the court to order a jury empaneled to inquire into appellant’s sanity at the time of his trial.