Wood, J.
(after .stating the facts). (1) In Featherstone v. Folbre, 75 Ark. 510-512, we said: “This court has no original jurisdiction to control or supervise any proceedings of the probate court. That all belongs to the circuit courts, as matters of original jurisdiction, and to this court by appellate or supervisory jurisdiction over the circuit courts. This court supervises and controls all courts inferior to the circuit courts only through the latter courts. In no other way can the harmony of our judicial system, as at present constituted, be preserved.”
In the same case we held that the supervisory jurisdiction of this court over the probate court “comes, not originally, but by way of appeal and supervision through the circuit courts.”
It follows that this court has no jurisdiction to issue the writ of prohibition in this case, directed to the probate court. If the application for a writ of prohibition directed to the probate court had been first made in the circuit court and refused, then this court would have jurisdiction by reason of its superintending control over the' circuit court, but this was not done.
The petition for the writ of prohibition directed to the- probate court must be denied.
(2) 'Courts of equity have to .do with civil and property rights, and they have no jurisdiction to interfere by injunction with criminal proceedings. They can not stay processes 'of courts having the exclusive jurisdiction of criminal matters,’ where no civil or property rights are involved. Portis v. Fall, et al. 34 Ark. 375; Medical and Surgical Institute v. Hot Springs, 34 Ark. 559; Taylor Cleveland & Co. v. Pine Bluff, 34 Ark. 603; Waters-Pierce Oil Co. v. City of Little Rock, 39 Ark. 412; High on Injunctions, § 68; Kerr on Injunctions in Equity, p. 2, star; 1 Wharton Cr. Law, § 403.
This court in State v. Vaughan, 81 Ark. 125, quoting from the Illinois Supreme Court, said: “It is elementary law that the subject-matter of the jurisdiction of the court of chancery is civil property. ■ * * The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. It is no part of the mission of equity to administer the criminal law of the State. A court of equity has no jurisdiction over matters merely criminal or merely immoral. ’ ’
The Supreme Court of the United States, In re Sawyer, 124 U. S. 200-209-210, says: “The office and jurisdiction of a court of equity, unless enlarged by -express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, punishment or pardon of crimes and misdemeanors, or over the appointment or removal of public officers. To assume such a jurisdiction or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officials, is to invade the domain of the courts of common law, or of the executive and administrative departments of the government.” See .also Fitts v. McGhee, 172 U. S. 516; 6 Pom. Eq. Jur., § 644, and .authorities- cited. Such suit is in effect a suit against the State.
It follows that the chancery court was wholly without jurisdiction to stay the execution of the judgment of the Clark Circuit Court.
(3) “The writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising jurisdiction with which it has not been vested by law.” 2 Spelling on Injunctions and Other Extraordinary Remedies, § 1716. See also Shortt on Informations, Mandamus and Prohibition, p. 436.
(4) Here the want of jurisdiction on the part of the chancery court appears on the face of the proceedings, and the writ of prohibition to quash and to restrain the enforcement of its orders will go.
Learned counsel for the respondents insist that the writ should not be issued in this case because the chancellor shows that he has done everything that he proposes or can do in the matter. But the injunction issued ■by the chancellor is outstanding, and it will be presumed that unless recalled, the officers will obey the same, or, if they do not, the chancellor will proceed to punish them for contempt of court in disobedience of his order.
“If,” said Lord Mansfield, “it appears from the face of the proceedings that the court below has no jurisdiction, a writ of prohibition may issue at any time either before or after sentence, because all is a nullity; it is coram non judice.” Bedgin v. Bennett, 4 Burr. 2037; Shortt on Information, etc., % 447, and oases cited in note.
(5) It is further insisted that the chancery court had jurisdiction to issue the injunction ancillary to or in aid of the jurisdiction of the probate court to enable it ■to enforce its orders. The chancery court has no such jurisdiction; but if it were conceded that the chancery court had such jurisdiction, the injunction could not properly issue in aid of the probate court’s jurisdiction, for the probate court itself was without jurisdiction. The statute under which the respondents claim that the probate court has jurisdiction, towit: section 4003 of Kirby’s Digest, is as follows:
“If any person shall give information in writing to such court that any person in his county is an idiot, lunatic, or of unsound mind, and pray that an inquiry thereof ibe had, the court, if-satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court, and inquire into the facts by a jury, if the facts be doubtful.”
(6) This statute was enacted solely for the purpose of protecting the civil and property rights of insane persons, as is clearly shown by the section itself and the other sections of the same chapter (chap. 83, Kirby’s Dig.) It has no reference whatever to determining the issue of the sanity of one who has been convicted and sentenced to be executed for a criminal offense, and who is already in custody of the law for that purpose.
It is further contended that the injunction should go because if Hodges is now insane he has no -other legal remedy than to apply to the probate -court and to the chancery court as he has done and that a great wrong would be perpetrated upon him for which there was no other remedy.
Section 2454 of Kirby’s Digest provides that, when the sheriff is satisfied that there are reasonable grounds for believing that the defendant is insane he may summon a jury to inquire as to his insanity, and if the jury finds that he is insane, then the sheriff shall suspend the execution and immediately transmit the inquisition to the Governor.
'The respondents contend that this section has been repealed by Act 55 of the Acts of 1913, providing that “when a judgment of death is pronounced upon any person upon conviction of a capital offense, -said person shall be immediately -conveyed to the State penitentiary and there kept -awaiting execution,” etc.
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Wood, J.
(after .stating the facts). (1) In Featherstone v. Folbre, 75 Ark. 510-512, we said: “This court has no original jurisdiction to control or supervise any proceedings of the probate court. That all belongs to the circuit courts, as matters of original jurisdiction, and to this court by appellate or supervisory jurisdiction over the circuit courts. This court supervises and controls all courts inferior to the circuit courts only through the latter courts. In no other way can the harmony of our judicial system, as at present constituted, be preserved.”
In the same case we held that the supervisory jurisdiction of this court over the probate court “comes, not originally, but by way of appeal and supervision through the circuit courts.”
It follows that this court has no jurisdiction to issue the writ of prohibition in this case, directed to the probate court. If the application for a writ of prohibition directed to the probate court had been first made in the circuit court and refused, then this court would have jurisdiction by reason of its superintending control over the' circuit court, but this was not done.
The petition for the writ of prohibition directed to the- probate court must be denied.
(2) 'Courts of equity have to .do with civil and property rights, and they have no jurisdiction to interfere by injunction with criminal proceedings. They can not stay processes 'of courts having the exclusive jurisdiction of criminal matters,’ where no civil or property rights are involved. Portis v. Fall, et al. 34 Ark. 375; Medical and Surgical Institute v. Hot Springs, 34 Ark. 559; Taylor Cleveland & Co. v. Pine Bluff, 34 Ark. 603; Waters-Pierce Oil Co. v. City of Little Rock, 39 Ark. 412; High on Injunctions, § 68; Kerr on Injunctions in Equity, p. 2, star; 1 Wharton Cr. Law, § 403.
This court in State v. Vaughan, 81 Ark. 125, quoting from the Illinois Supreme Court, said: “It is elementary law that the subject-matter of the jurisdiction of the court of chancery is civil property. ■ * * The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. It is no part of the mission of equity to administer the criminal law of the State. A court of equity has no jurisdiction over matters merely criminal or merely immoral. ’ ’
The Supreme Court of the United States, In re Sawyer, 124 U. S. 200-209-210, says: “The office and jurisdiction of a court of equity, unless enlarged by -express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, punishment or pardon of crimes and misdemeanors, or over the appointment or removal of public officers. To assume such a jurisdiction or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officials, is to invade the domain of the courts of common law, or of the executive and administrative departments of the government.” See .also Fitts v. McGhee, 172 U. S. 516; 6 Pom. Eq. Jur., § 644, and .authorities- cited. Such suit is in effect a suit against the State.
It follows that the chancery court was wholly without jurisdiction to stay the execution of the judgment of the Clark Circuit Court.
(3) “The writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising jurisdiction with which it has not been vested by law.” 2 Spelling on Injunctions and Other Extraordinary Remedies, § 1716. See also Shortt on Informations, Mandamus and Prohibition, p. 436.
(4) Here the want of jurisdiction on the part of the chancery court appears on the face of the proceedings, and the writ of prohibition to quash and to restrain the enforcement of its orders will go.
Learned counsel for the respondents insist that the writ should not be issued in this case because the chancellor shows that he has done everything that he proposes or can do in the matter. But the injunction issued ■by the chancellor is outstanding, and it will be presumed that unless recalled, the officers will obey the same, or, if they do not, the chancellor will proceed to punish them for contempt of court in disobedience of his order.
“If,” said Lord Mansfield, “it appears from the face of the proceedings that the court below has no jurisdiction, a writ of prohibition may issue at any time either before or after sentence, because all is a nullity; it is coram non judice.” Bedgin v. Bennett, 4 Burr. 2037; Shortt on Information, etc., % 447, and oases cited in note.
(5) It is further insisted that the chancery court had jurisdiction to issue the injunction ancillary to or in aid of the jurisdiction of the probate court to enable it ■to enforce its orders. The chancery court has no such jurisdiction; but if it were conceded that the chancery court had such jurisdiction, the injunction could not properly issue in aid of the probate court’s jurisdiction, for the probate court itself was without jurisdiction. The statute under which the respondents claim that the probate court has jurisdiction, towit: section 4003 of Kirby’s Digest, is as follows:
“If any person shall give information in writing to such court that any person in his county is an idiot, lunatic, or of unsound mind, and pray that an inquiry thereof ibe had, the court, if-satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court, and inquire into the facts by a jury, if the facts be doubtful.”
(6) This statute was enacted solely for the purpose of protecting the civil and property rights of insane persons, as is clearly shown by the section itself and the other sections of the same chapter (chap. 83, Kirby’s Dig.) It has no reference whatever to determining the issue of the sanity of one who has been convicted and sentenced to be executed for a criminal offense, and who is already in custody of the law for that purpose.
It is further contended that the injunction should go because if Hodges is now insane he has no -other legal remedy than to apply to the probate -court and to the chancery court as he has done and that a great wrong would be perpetrated upon him for which there was no other remedy.
Section 2454 of Kirby’s Digest provides that, when the sheriff is satisfied that there are reasonable grounds for believing that the defendant is insane he may summon a jury to inquire as to his insanity, and if the jury finds that he is insane, then the sheriff shall suspend the execution and immediately transmit the inquisition to the Governor.
'The respondents contend that this section has been repealed by Act 55 of the Acts of 1913, providing that “when a judgment of death is pronounced upon any person upon conviction of a capital offense, -said person shall be immediately -conveyed to the State penitentiary and there kept -awaiting execution,” etc. And also that the “said superintendent or the assistants appointed by him, shall proceed, unless a suspension of execution be ordered, at the time named in -said sentence, to cause the said felon under sentence of death to be electrocuted until he is dead.”
(7) There is no express repeal of the statute conferring power upon the sheriff of the county where the defendant has been convicted of inquiring into his sanity at the time set for his execution, and the statute conferring upon him such power is not repealed by implication, and if it came to his knowledge that the defendant was insane at the time set for his execution the sheriff would still have the power to make the inquiry, and if the superintendent of the penitentiary should refuse him the custody of the prisoner for that purpose he could invoke the aid of the circuit court or the judge of that court in vacation to have the custody of the prisoner surrendered to him for the purpose of making the inquisition as to his alleged insanity. But, if it be conceded that Act 55 of the Acts of 1913, supra, repealed, by implication, the statute conferring such power upon the sheriff, still there would be an adequate remedy for the defendant at the common law, in the absence of any statute upon the subject, for all of our statutes passed for the protection of insane persons against the punishment that the law would otherwise inflict upon them for the commission of criminal offenses, are but declaratory of the common law, or cumulative of the remedies that were there provided for their protection in such cases.
In Taffe v. State, 23 Ark. 34, this court said: “The first principles of the elementary books are, that whenever a person is disqualified from defending himself, by the loss or want of reason, he shall not be the subject of a legal prosecution or penalty.” And, further, quoting from 4 Blk. Com. 24 and 395: “If a man in his sound memory commits a capital offense, and before his arraignment he become absolutely mad, he ought not by law, to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed; the reason is because he can not advisedly plead to the indictment; and this holds as well in eases of treason, as felony, even though the delinquent in his sound mind were examined, and confessed the offense before his arraignment. And if such person, after his plea and before his trial, become of nonsane memory, lie shall not he tried; or, if after his trial he becomes of nonsane memory he shall not receive judgment; or, if after judgment he becomes of nonsane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.”
See also State v. Helm, 69 Ark. 167-171.
(8) It can not be doubted, therefore, that even in the absence of any statute upon the subject, the circuit court or judge thereof, in vacation, would have the inherent power to say that the execution of the judgment of that court wias not in force upon a person who was insane at the time set for his execution. A writ upon proper application could be issued by the court or the judge thereof, returnable to the court to inquire into the alleged insanity -of the prisoner at the time set for the execution to the end that the sentence of the law might, not be carried out if it were determined by a jury empaneled for the purpose that the defendant were insane. See Adler v. State, 35 Ark. 517; Steward v. State, 124 Wis. 623; 4 A. & E. Ann. Cases, 389, note on p. 393.
Therefore, there is a complete and adequate remedy at law and there was no reason to justify the issuance of the injunction, even if the chancery court had jurisdiction to do so.
The writ of prohibition will therefore be granted iand the injunctive order of the chancery court will be quashed.