#### Reece v. State.

Opinion delivered May 3, 1915.

1. ' Criminal law — special term — order of circuit judge. — The order -of the circuit judge for a special term .of the. court to try criminal oases is jurisdictional, -and must be strictly complied with in ■order -to give authority to indict or .try criminals at that term; every fact, according to the strict terms of the statute, must be made to appear of .record, otherwise the jurisdiction of the court will fail.

2. Courts — term of court — special term — order of circuit judge— nunc pro tunc order. — The legality of a special term of the circuit ■court depends upon the sufficiency of the order of court, and if that order is, on jurisdictional grounds, insufficient, an amendment can not relate back so as ;to legalize a term of court which was not valid at the time it was held.

3. Criminal law — special term — order of circuit judge — who may be tried. — Only those persons may be tried at a special term of ■the circuit court, who are specially designated in the order of court calling the special term.

Appeal from Mississippi Circuit Court, Chickasawha District; W. J. Driver, Judge;

reversed.

W. D. Gravette and S. R. Simpson, for appellant.

1. The special term of court was not 'legally organized. It is essential to the legal .organization of ia special term of the circuit court that the order therefor state (1) that there is some person or persons confined in jail, naming him or them, who may he tried upon some criminal charge; (2) that no other court must intervene; (3) that it must not be within .'twenty days of a regular term; (4) that the order be made out by the judge .and transmitted to the clerk and he by 'him entered of record at least ten *311days before the appointed day. To give jurisdiction to the court, all these requirements must appear from the order made by the circuit judge, and not otherwise and at such special term, no other person or persons than the one or more named in the order, and who was or were confined in jiail at the time the order was made, can be tried. 2 Ark. 230; 9 Ark. 326; 29 Ark. 170; 45 Ark. 453; 79 Ark. 297; 100 Ark. 373; 103 Ark. 450, and cases cited.

2. The status of the case is not 'changed by the ■amendment of the record nunc pro time, which was unauthorized. The purpose of an amendment of a record by nunc pro time order is to make it speak the truth, and a court can not exercise this power to make the record speak what it should have spoken, but in fact did not speak. 87 Ark. 441; 35 Ark. 278; 31 Ark. 194; 40 Ark. 224; 78 Ark. 364; 92 Ark. 305; 72 Ark. 22; 55 Ark. 30; 93 Ark. 237; 99 Ark. 435; 93 Ark. 558.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

The order for a special term contains the proper averments, and notice thereof was properly served. As to the ob jection that the appellant was not named in the order, it is sufficient to say that the order prepared by the judge followed the language of the statute.

McCulloch, C. J.

A grand jury impaneled at a special term of the circuit court of Mississippi County, Chick■asawba District, held on August 24,1914, returned an indictment against appellant, E. Beece, for the crime of murder in the first degree, and at the next regular term of said court appellant was tried and convicted of murder in the second degree. The validity of the indictment was and is challenged on the ground that the special term of court, 'and the grand jury which was empaneled at that term, was illegal because not called by the circuit judge in the manner prescribed by the statute. The order of the circuit judge was directed to the clerk, and is in the following form:

“Whereas, the undersigned judge of the circuit court for the Second Judicial Circuit for the State of Arkansas, *312being informed that a large number of persons are confined in the jail house, for said district, in said county, and State, charged with erime and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore. Now, therefore, you are hereby directed to issue a venire facias to the sheriff of Mississippi County, requiring him to summon a grand jury to attend a special term of the circuit court in the second division, to be holden at the courthouse in the city of Blyt'heville, in said Chieknsawba District of Mississippi County, Arkansas, on Monday, the 24th day of August, 1914, the same being a date at which no regular or adjourned session of the circuit court in the second division thereof is in session, and said date not being within twenty days of any regular term of said court in said division. ’ ’

It will be observed in the first place that the instrument prepared land signed by the judge does not in express terms order that a special term be held on the date named. According to the express language used, it only recites the necessity for holding a special term of the court for the purpose of trying persons confined in jail, and directs the clerk to issue a venire facias to the sheriff requiring him to summon a grand jury to attend a special term to be holden at the courthouse on the day named.

The first point made against the legality of the proceedings is that there was no special term called. Our statute on this subject is a part of the Revised Statutes and was copied literally from a Missouri statute, and the Supreme Court of Missouri, in the case of Mary v. State, 5 Mo. 71, decided in 1837, Which wias before the statute was adopted in this State, held that an order substantially in the same language as the one now under consideration was sufficient to amount to a direction to hold the term of court. However, we need not discuss that point further or decide it in the present case, as we have reached a conclusion disposing of the case on 'another point.

(1) The principal contention is that the form of the order is insufficient to give vitality to the special term *313■of coiirt for the reason that it fails to designate the accused persons who were to he indicted and tried. The order, las will be seen from its inspection, merely recites that the judge is “informed that a large number of persons are confined in the jail house * * * charged with crime 'and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore. ” The order does not designate any individual nor does it expressly direct that all persons confined in jail are to be tried at a special term of court. We have decided that the order of the circuit judge for a special term of the court to try criminal cases is jurisdictional and must be strictly complied with in order to give authority to indict or try criminals at that term. In Beard v. State, 79 Ark. 293, we said: “It has been held by this court that every fact, according to the strict terms of the statute, must be made to appear of record, otherwise the jurisdiction of the count will fail. Dunn v. State, 2 Ark. 230; Pulaski County v. Lincoln, 9 Ark. 326. The order of the judge must therefore recite every jurisdictional fact, because in no other way can those facts appear upon the record.” The same rule announced in the more recent case of Hill v. State. 100 Ark. 373.

(2) Since the case came here on appeal, the circuit count, has on motion of the prosecuting attorney, amended the order, nunc pro tunc, so as to specify that appellant was confined in jail 'and that the special term of court was called to impanel a grand jury and indict appellant on the charge for which he was confined. In Beard v. State, supra, we pretermitted any discussion of the question whether or not the court had the power, after indictment and trial of an accused under such circumstances, to make an order amending the original order of the judge calling the special term of the court. In that case it was unnecessary to 'decide the question for the reason that we held that the unamended order was sufficient under the law. Upon further consideration now, we are clearly of the opinion that since the order of •the judge calling a special term of the court is juris die*314tional, it cannot, if found to be insufficient, be validated by a subsequent order of tbe ¡court ¡amending it so ¡as to establish tbe jurisdiction of tbe -court. Tbe legality of tbe term of -court depends upon tbe -sufficiency of tbe order -of tbe court, -and if that order is, on jurisdictional grounds, insufficient, 'an -amendment cannot relate back so as to legalize a term of court which was not valid at tbe time it was- held. We must therefore test this ca-s-e by ¡a -solution of the question whether or not the -original order of the trial judge, ¡calling a special term, of -the court at which (appellant was indicted, was in conf ormity with the -statute and sufficient to give the court jurisdiction.

Dunn v. State, 2 Ark. 230, was decided by tbis court in tbe year 1840, which was shortly ¡after the -adoption of the Revised Statutes -containing the provision now under consideration. The ¡statute was- thoroughly -considered and rules were laid down ¡concerning the form of the order of the circuit judge necessary to give -the court jurisdiction ¡at a special session. After summarizing the essential features o-f ¡the ¡order, the ¡court ¡said: “We ¡are therefore ¡satisfied that the order for the ¡special term must be made ¡at least ten days before the ¡commencement of the -term, ¡and designate the persons to be there tried, ¡and -state they -are Confined in jail, -and whether they have been indicted, previously ¡o;r otherwise, -and if they, -or either ¡o-f them, have not been in-dieted for the of-fence for -which he is to be there tried, the order must contain a direction to the clerk to issue a venire facias to the sheriff, requiring him to ¡summon a -grand jury to 'attend ¡suieh ¡special term ¡of the ¡Court.” The court further said in the -opinion that no persons other than those in jail ¡at the time the order wfas- made, ¡and designated in the order, -Could be tried. If that -be the effect -of the statute, it is clear that a mere recital that numerous persons are in jail is not -sufficient -designation -of tbe persons to be indicted or tried.

(3) It is urged on behalf of counsel for tbe State that tbe ruling in Dunn v. State, with respect to tbe points *315referred to, was dictum. The same point was made in Hill v. State, supra, but we said that the doctrine laid down in the Dunn case had been recognized ever ¡since by this ¡court ¡as the correct interpretation of the ¡statute, ■and that that interpretation ¡should not now be departed from. Moreover, we ¡are ¡convinced, upon ¡a reconsideration' ¡of the matter, that that interpretation was ¡correct. A limited jurisdiction is ¡conferred by the ¡statute, ¡and the purpose was clearly to provide for ¡calling a special session in particular ¡oases. The ¡court has no right to try oases :at ¡a special term other than that designated in the order, nor has the grand jury impaneled at ¡such term general powers of inquisition, but is limited to ¡an inquiry into those matters specially embraced in the ¡call. The general policy of our statutes is to provide for trial ¡of ¡oases at regular terms of ¡court, of which the public is advised by the ¡statute itself fixing the time for holding court. The ¡statute now under consideration merely provides for ¡an emergency, ¡and the thought ¡of the lawmakers was that in particular -Cases’, where persons charged with crime are confined in jail, the court -should have power to call a ¡special term of the ¡court to try. those particular persons. Of ¡course, the judge could specify more than one accused person in the order but, after ¡all, the order is to be for the trial of the persons specially designated and no others.

We are of the ¡opinion, therefore, that the indictment in this case cannot be ¡sustained without departing from long established rules of practice laid down by this court in the interpretation of the statute under consideration. It follows that ¡the judgment must be reversed and the cause is remanded with directions to quash the indictment, and for further proceedings in ¡accordance with the statutes covering ¡such oases.

Kirby, J. dissents.