Barnes v. Commonwealth

Citation23 S.E. 784,92 Va. 794
Decision Date12 December 1895
CourtSupreme Court of Virginia

Criminal Law—Amendment of Record—Objection to Jurors — Separate Trial — Review— Right to Counsel Jury — Custody of Sheriff.

1. After the term at which a case is tried, the court cannot amend its records, unless there is something in the record by which amendments can be safely made; but they cannot be made upon the individual recollection of the judge, or upon proofs aliunde.

2. As Code, § 3156, as amended by Acts 1893-94, c. 43, p. 494, provides that no irregularity in drawing or impaneling jurors shall be sufficient to set aside a verdict, unless the complaining party was injured thereby, or unless the objection was made before swearing of the jury, failure of the record to show that the 16 jurors selected were free from exception, as required by Code, § 4023, is not ground for reversal, where no objection was made to the irregularity, and no prejudice resulted therefrom.

3. As Code, § 4029, provides that persons jointly indicted may be tried separately, at their election, or at the request of the commonwealth's attorney, a person so indicted cannot complain that she was tried separately, particularly where the record discloses no request for a joint trial.

4. The denial of a motion for a change of venue, and the instructions given by the court, cannot be reviewed, where said motion and instructions are not in the record.

5. Though the accused did not have counsel, unless it appears that she was denied the right, the judgment will not be reversed.

6. Where the record in a capital case shows that the jury were adjourned from one day to another, it must also show that the jurors were committed to the custody of the proper officer, with instructions not to speak to them himself or allow any one else to speak to them, touching the trial of the case in which they are engaged, Riely, J., dissenting.

Error to Lunenburg county court Pokey Barnes was convicted of murder, and brings error. Reversed.

A. B. Guigon, H. W. Flournoy, and Wise & Wise, for plaintiff in error.

W. H. Mann and R. Taylor Scott, Atty. Gen., for the Commonwealth.

BUCHANAN, J. The first question to be disposed of is the motion of the attorney general and his associate, in behalf of the commonwealth, to have the decision of this case upon the merits postponed until the county court shall have amended the record of this case in that court so as to make it show:

(1) That 16 jurors, free from exception, were selected for the trial of the accused.

(2) That at every adjournment of the court the jury trying the case at bar were put in the custody of the sheriff, who was duly sworn as required by law, and that they were each morning returned into court in the custody of the sheriff, according to the order of adjournment.

(3) That, whenever the jurors went to their room to consider of their verdict, they were put in the custody of the sheriff, who carried them to their room, and returned them, in his custody, into court.

(4) That before delivering their verdict the jurors were polled as required by law.

The amendments which the attorney general desires to have made in the record, it is claimed, are based on the personal knowledge of the judge, and the records of the court as they now stand, and that all the orders which it is sought to have entered to amend the record in the particulars named were made during the trial of the case, and that the clerk was then directed to enter them on the order books of the court, but, by mistake, failed to do so.

The rule at common law is that, during the term wherein any judicial act is done, the record remains in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during the term as the judges shall direct; but, when the term is past, then the record is in the roll, and admits of no alteration, averment, or proof to the contrary. 3 Thorn. Co. Litt. 323, as quoted in 1 Rob. Prac. (Old Ed.) 638; Bunting v. Willis, 27 Grat, at pages 158, 159; Winston v. Giles, Id., at page 534; Cawood's Case, 2 Va. Cas. 527, 545.

It has been correctly observed that the judge, during the term, is a living record, and therefore, during that period of time, he may alter, and supply from his own memory, any order, judgment, or decree which has been pronounced; and this because, having made them himself, he is presumed to retain them in his recollection. But at com-mon law, after the term has elapsed, the judge has no such power, because it is supposed there will be a period at which a judge will cease to retain in his memory the things which have been ordered and adjudged; and that period, it is well conceived, may be the end of the term, as he will then be apt to dismiss from his thoughts the things which have been previously passing in them. It is, indeed, a very delicate power, and might be subject to much abuse, especially in criminal cases, if the extent to which it might be carried was not well defined and properly checked by law. Note to 1 Archb. Cr. Prac. & Pl. (Pom. 8th Ed.) p. 593.

At an early day in this state, statutes were enacted for the purpose of compelling the courts to keep their records accurately, and to provide how records, in certain cases, might be amended. The statute now in force upon the subject of keeping such records provides that:

"The proceedings of every court shall be entered in a book and read in open court by the clerk thereof. The proceedings of each day shall be drawn up at large, and read during that term, except those of the last day of the term, which shall be drawn up and read the same day. After being corrected, where it is necessary, the records shall be signed by the presiding judge." Code 1887, § 3114.

This statute, and those which preceded it upon the same subject, were intended to provide for keeping the records of the proceedings of every court correctly, by making it the duty of the clerk to enter them in a book, and to read them in open court to the judge, in the presence of the bar, so that any errors in or omissions from them might be corrected.

Recognizing the fact, however, that, notwithstanding these wise and salutary provisions, errors and omissions might still occur, other statutes were enacted which authorized the courts, after the end of the term, to make amendments and corrections in certain cases. Section 3451 of the present Code, among other things, provides that:

"The court in which is rendered a judgment or decree in a cause wherein there is in a declaration or pleading, or in the record of the judgment or decree, any mistake, miscalculation, or misrecital of any name, sum, quantity or time, when the same is right in any part of the record, or proceedings, or where there is any verdict, report of a commissioner, bond or other writing whereby such judgment or decree may be safely amended, * * * may * * * amend such judgment or decree according to the truth and justice of the case."

These are the regulations established by the legislature for keeping and amending judicial records, and the few cases which we have in our Reports upon the subject show how effective they have been in preventing litigation, and the slight changes that have been made in them during the long period they have been in force show how successfully they have accomplished the purposes for which they wore enacted.

In Cawood's Case, reported in 2 Va. Cas. 527, decided by the general court in 1826 six questions were adjourned by the superior court of Wythe county to the general court, on account of their novelty and difficulty, for its opinion. Among them were the following:

"(1) What is the legal effect of an omission on the part of the clerk of the circuit court of Washington county to enter on the order book that the grand jury, at the last April term of that court, had found an indictment against Benjamin Cawood and others, 'A true bill'?

"(2) Can such an omission be supplied by resorting to the paper purporting to be an indictment, copied into the record by the clerk, and the indorsement thereon, purporting to have been made by the grand jury, finding it to be a true bill?"

The case was very fully and ably argued. In answer to the first question, the court held that it was necessary to record the finding of the grand jury, in order to perfect the indictment.

In answer to the second question, and the one which is important in considering the case at bar, the general court said, at page 545: "The next question is whether the omission of the grand jury can now be supplied, and whether the record can be amended in this particular. A view of the decisions of this country and in England, referred to by the counsel, leads us to the conclusion that during the term the records are in the breast of the court, and that amendments may be made in the proceedings of the court, but that after the term has passed no amendment can be made, except mere clerical misprisions; that this is not a misprision of that kind; that, the term having passed, there is nothing to amend by, except the memory of the judge, of the clerk, of the grand jurors, and others; and that it cannot be amended."

In the case of Burch v. White, 3 Rand. (Va.) 104, at the next term after the judgment was entered, an order was made stating that at the previous term of the court an appeal had been allowed from the judgment, but that the clerk had omitted to enter it, and therefore the appeal was allowed nunc pro tunc. This court said whether an appeal would lie from a judgment was a question of law, to be decided by the court, and the only evidence of what the court had done was the record. It was not a case in which there was anything in the record to amend by. For, though an appeal bond had been filed in the office, that furnished no proof that the bond had been received by the court, or that an appeal had been allowed.

In Powell's Case, 11 Grat. 822, the accused was indicted for forgery, tried, and convicted....

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