Clark v. State

• Decision Date: 05 June 1900
• Citation: 36 S.E. 297,110 Ga. 911
• Parties: CLARK. v. STATE.
• Court: Georgia Supreme Court

110 Ga. 911

36 S.E. 297

CLARK.

v.STATE.

Supreme Court of Georgia.

June 5, 1900.

CRIMINAL LAW—DIMINUTION OF RECORD —JURISDICTION ON APPEAL— VENUE—EVIDENCE.

1. When, in making a suggestion of a diminution of the record in a case pending in the supreme court, it is alleged that the brief of the evidence which was filed with the motion for a new trial had, without authority, been changed in certain particulars before the transcript of the record had been made, and it is not alleged that the copy of the brief of evidence as it appears in the transcript of the record is not a true copy of the approved brief of evidence on file, such suggestion will not be entertained. The office of such a suggestion is to perfect the record in the supreme court so that it may correspond in all particulars with the original on file in the office of the clerk of the trial court.

2. The supreme court has no jurisdiction to make inquiry into the fact whether an alteration has or not been made in any of the original papers which constitute the record of a case, when such alterations are alleged to have been made before the filing in the office of the clerk below of the bill of exceptions duly certified, and, consequently, before the record for this court has been made up and certified. Under such circumstances, jurisdiction to inquire into the matter is confined to the trial court.

3. The venue of the crime for the commission of which the plaintiff in error was convicted does not appear, from an inspection of the brief of evidence, to have been proven. A new trial is therefore awarded.

(Syllabus by the Court.)

Error from superior court, Gwinnett county; R. B. Russell, Judge.

John Clark was convicted of assault with Intent to kill, and brings error. Reversed.

Brown & Cooper, for plaintiff in error.

C. H. Brand, Sol. Gen., for the State.

LITTLE, J. On the call of this case the solicitor general, under the rules of this court, in writing, suggested a diminution of the record, and set forth the following facts: That he agreed to the original brief of evidence prepared in connection with the motion for new trial on condition that certain corrections made therein by him should be a part thereof, and delivered the same to counsel for the plaintiff in error. Subsequently the brief was examined by the judge who presided at the trial, while such corrections were a part of the brief. That during the week preceding the call of the case in this court he called at the clerk's office for the purpose of preparing a brief for the argument of the case, and, finding that it was in the possession of one of the counsel for the plaintiff in error, obtained it, and on reading it discovered that the same had been altered by an erasure of that part of the brief which showed that the venue and character of the weapon used were parts of the evidence before the jury. This alteration was made without the knowledge or consent either of the judge or himself, and was without authority. The erasure, it was alleged, was made after the judge had read and examined the brief, but before he had formally approved the same. That the brief had been in the custody of one of the counsel for the plaintiff in error before and since the motion for new trial was decided, and before the record was made up. That the evidence which was stricken from the brief was material to a fair hearing of the case, and a suggestion of diminution of the record was made, and the court requested to pass such order as would fully protect the interest of the state. Accompanying this suggestion was a certificate from the clerk setting out certain evidence which appeared in the brief in the handwriting of the solicitor general, showing that the cutting (the plaintiff in error was indicted for an assault with intent to murder, and was found guilty of stabbing) was on Saturday before Christmas in 1898, in Gwinnett county, and that the knife was a weapon likely to produce death, etc. The clerk further certified that this portion of the testimony was at some time (he does not know when) stricken from the brief with pen and ink by some one (he does not know who). Copies of that part of the evidence which was added by the solicitor general, and also that part which was thus stricken, were also attached. A certificate of the judge was also attached, to the effect that, after the brief of evidence was prepared by movant's counsel, and the same was interlined and corrected by the solicitor general, and agreed to by him with...