¶1(dissenting). I cannot concur in the construction placed on section 6226 of Kirby’s Digest by the majority of the court. The force of Smith v. State, which the court follows, is weakened by its omission from the official reports. This can only be done through the approval of the Chief Justice' (Sec. 1266, Kirby’s Digest), and he was the writer of that opinion, and evidently did not regard it as affording a precedent.
¶2The affidavits of bystanders, when in conflict with each other or in conflict with the judge’s statement, should raise a question of fact to be determined in this court. If a bystander testified that his attention was sharply drawn to the point in issue, and ‘the judge was reading, writing or conversing, or nodded, as judges do sometimes nod, or in some other way indicated that his memory was more likely to be correct than the memory of the judge, .then I think that the affidavit of one bystander might well control. But where the bystanders fail to show, as in this case, any reason for remembering the exact language used, and yet each put it in the identical words rised in the motion for new trial, and the attention of the judge is .not shown to have been diverted, and the judge says positively that this language attributed to counsel in his argument was not used, then I think the bystanders have failed to overcome the record as made by the judge. That the affidavits of bystanders raise an issue of fact for this court is, I think, the effect of the decision in Boone v. Goodlett, 71 Ark. 577, and the Smith case was ignored in that opinion; and that seems to me is the only proper construction to place on section 6226. Otherwise irresponsible bystanders can control the records of the court, and that evidently was.not the intention-of this statute, which was to enable parties to correct a record when the judge was shown to be in error.'