Opinion
No. 5820
Supplemental opinion delivered December 24, 1973 [Original opinion delivered July 23, 1973, 254 Ark. 664, 497 S.W.2d 696.]
1. CRIMINAL LAW — APPEAL ERROR — REMAND FOR A NEW TRIAL. — That the Supreme Court ended the opinion with the word "reversed" instead of "reversed and remanded" or a similar phrase did not establish the case had not been remanded for a new trial since the court customarily uses the words interchangeably. 2. CRIMINAL LAW — REMAND — EFFECT OF MANDATE. — The opinion could not properly be construed as directing a dismissal of the information where the mandate remanded the cause for further proceedings. [Ark. Stat. Ann. 43-2725.2 (Supp. 1971).] 3. CONSTITUTIONAL LAW — GOVERNMENTAL POWERS FUNCTIONS. — The manner in which the Supreme Court writes its opinions does not fall within the authority of the legislative branch of government.
Petition for clarification of opinion from Union Circuit Court, First Division; Melvin Mayfield, Judge.
Camp Thornton, P.A., and James J. Calloway, for appellant.
Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
In our substituted opinion on rehearing in this case, delivered on July 23, 1973, we reversed the judgment because the State had been allowed to introduce inadmissible hearsay evidence. In due course our mandate was issued, remanding the case to the circuit court "for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered."
Thereafter Upton filed in the trial court a motion to dismiss the information, on the ground that the case had not been remanded for a new trial. The trial court overturned that motion. Upton then filed a petition for habeas corpus in the United States District Court, reasserting the same point. Judge Oren Harris, to whom the petition was presented, suggested that the Attorney General seek a clarification of our opinion. Such a request for clarification is now before us. The time for a response to the Attorney General's petition has expired without any response having been filed, but we have studied Upton's petition for habeas corpus and the supporting brief that was filed by counsel in the federal court.
Upton contends that this court did not remand the case for a new trial, because our opinion ended with the word "Reversed" instead of "Reversed and remanded" or some similar phrase. We customarily use the terms interchangeably; so that no significance attaches to either one. We frequently end our opinions with the word "Reversed" even though the opinion itself shows that a new trial is contemplated. Among countless such opinions is our Reports, recent examples include Courtney v. State, 252 Ark. 620, 480 S.W.2d 351 (1972); Morris v. State, 252 Ark. 487, 479 S.W.2d 860 (1972); Swanson v. State, 251 Ark. 147, 471 S.W.2d 147 (1971).
It is argued that our opinion in the case at bar should be construed as directing a dismissal of the information, in the light of 12 of Act 333 of 1971, which reads:
A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive. [Ark. Stat. Ann. 43-2725.2 (Supp. 1971).]
We do not read the statute as having anything to do with the manner in which this court writes it opinions — a matter not falling within the authority of the legislative branch of the government. Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751 (1886). But even if we did so interpret the statute, it states plainly that the court, where appropriate, shall order the appellant discharged. We did not enter such an order. To the contrary, our mandate remanded the cause for further proceedings, which completely answers Upton's present contention.
HARRIS, C.J., not participating.