Council v. Com.

• Decision Date: 04 September 1956
• Parties: RAYMOND THOMAS COUNCIL v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Supreme Court

Page 245

94 S.E.2d 245

198 Va. 288

RAYMOND THOMAS COUNCIL v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 4, 1956.

W. A. Hall, Jr., for the plaintiff in error.

C. F. Hicks, Assistant Attorney General, (J. Lindsay Almond, Jr., Attorney General, on brief), for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

On April 24, 1951, Council was convicted of rape in the Circuit Court of Princess Anne County and sentenced to life imprisonment. The order of conviction was regular except it contained the names of only eleven jurors; the name of Emerson Macon, allegedly the twelfth juror, being inadvertently omitted.

On July 1, 1955, the Commonwealth's attorney, after due notice, moved the trial court to enter a nunc pro tunc order correcting the omission. ¹ Over the objection of the defendant the nunc pro tunc order was entered showing that Council had been tried and convicted by twelve jurors rather than eleven as shown by the original order.

At the hearing on the motion the Commonwealth's attorney called the deputy clerk as a witness; he testified that he was acting clerk on April 24, 1951; that he kept a minute book 'in which all minutes, orders and motions are recorded at the time of the trial of the case'. He produced the minute book kept in the court on April 24, 1951, and filed as an exhibit a page therefrom which he testified was in his own handwriting, and which read:

Affirmed

'Com. vs. Raymond Thomas Council --

Plea of Not Guilty, Arraigned, Own Counsel,

Richard G. Brydges --

Jury: --

B. Ernest Davis

William T. Carter

S. G. T. Hosking

Thomas N. Chaplain

Albert Gomez

J. Linwood McKown

'Verdict: --

Richard Goodman

E. L. Corprew

Emerson Macon

H. A. Duplain

Robert E. Hogshire

I. V. Hargrove

'We the jury find the defendant guilty of rape as charged in the within indictment and fix his punishment at life imprisonment.

'M. to set aside verdict & Cont'd.'

The witness also introduced in evidence and filed as an exhibit the original jury list used at the trial; this list he stated had been kept with the case file in his exclusive possession. At the top of the list had been written by the witness at the time of the trial, 'Com. v. Council 4/24/51.' Printed at the top in large letters was the title 'LIST OF JURORS', under which was printed the name 'Roger Malbon, Sheriff.' The list contained the names of nineteen eligible jurors, from which seven had been struck, leaving twelve -- the eleven named in the order of conviction and Emerson Macon. The witness also testified that 'twelve men sat in this case'.

The judge of the court (the same judge who presided at the trial in 1951) thereafter, on July 7, 1955, entered the order now complained of, reciting that it appeared from the evidence '* * * that the order heretofore entered herein on April 24, 1951, is defective in that it did not name Emerson Macon as one of the jurors sworn to try this case. And it further appearing to the court that the Clerk's Minute Book and the original Sheriff's Jury List discloses that Emerson Macon was one of the jurors sworn to try this case together with the other eleven jurors named in the order of April 24, 1951.

'It is therefore ORDERED that the Order heretofore entered herein on April 24, 1951, convicting the accused Raymond Thomas Council for rape, be amended and corrected so as to read as follows: * * *'. Then followed the order in the same words as the order of April 24, 1951, except the name of Emerson Macon was inserted, thus making a jury of twelve.

The defendant duly objected to all of the evidence so introduced and now insists that it was inadmissible and that the court erred in admitting it and using it as a basis for the nunc pro tunc order. This is the assignment of error here relied upon.

He asserts that it has long been the settled rule in Virginia, 'whatever may be the rule in other jurisdictions', that after the term at which a final judgment has been entered, courts can make amendments in their records only "in cases in which there is something in the record by which they can be safely made, and that amendments cannot be made upon the individual recollection of the judge, or upon proofs aliunde."' He cites Teasley v. Commonwealth, 188 Va. 376, 382, 49 S.E.2d 604, 606. The above quotation is taken from Barnes v. Commonwealth, (1895), 92 Va. 794, 800, 23 S.E. 784, 786, in which opinion the court reviews our prior decisions -- Commonwealth v. Cawood (1826), 2 Va. Cases (4 Va.) 527; Burch v. White (1824), 3 Rand. (24 Va.) 104; and Powell v. Commonwealth (1854), 11 Gratt. (52 Va.) 822.

Unquestionably these cases hold that there must be something in the record by which the proposed amendment can be safely made; something other than the recollection of the judge or proofs aliunde, i.e., proofs from another source, or outside of the record. Black's Law Dictionary, de luxe 3rd ed., p. 94.

Our holding to that effect in the Teasley case, in addition to being supported by the Barnes case, is in accord with similar holdings in Wright v. Commonwealth, 111 Va. 873, 876, 69 S.E. 956, 957; Walker v. Commonwealth, 144 Va. 648, 659, 131 S.E. 230, 233; Lockard v. Whitenack, 151 Va. 143, 150, 144 S.E. 606, 608; Owen v. Owen, 157 Va. 580, 585, 162 S.E. 46, 47; New York Life Ins. Co. v. Barton, 166 Va. 426, 431, 186 S.E. 65, 67.

The Attorney General says that he does not urge a reversal of our prior holdings. He insists, however, that the clerk's minute book and the sheriff's jury list come within the scope of quasi records, and that we should hold such records to be admissible and not to come within the scope of proofs aliunde. There is substantial authority for this argument which will be later discussed, but we had rather rest our decision on broader grounds.

Virginia is one of seven States subscribing to the (common law) minority rule which holds that during the term in which a judicial act is done the record remains 'in the breast of the court' and is subject to alteration or amendment as the judge may direct; but after the lapse of the term the judge is powerless to change the record other than by nunc pro tunc entries to make the record 'speak the truth'. Under the minority rule nunc pro tunc orders can only be entered where there is sufficient record evidence to authorize the amendment.

The six States other than Virginia subscribing to the minority rule are: Georgia (Summerlin v. State (1908), 130 Ga. 791, 61 S.E. 849); Illinois (People v. Powers (1916), 200 Ill.App. 536); Kentucky (Conn v. Doyle (1810), 2 Bibb (5 Ky.) 248); Mississippi (McCarthy v. State (1879), 56 Miss. 294); Missouri (State v. Libby (1907), 203 Mo. 596, 102 S.W. 641); Texas (Sullenger v. State (1916), 79 Tex.Crim.Rep. 98, 182 S.W. 1140).

Three of the States which follow the minority rule hold quasi record proofs admissible. They are: Illinois (Hubbard v. People, 197 Ill. 15, 63 N.E. 1076); Kentucky (Ralls, et al. v. Sharp's Adm'r., et al., 140 Ky. 744, 131 S.W. 998); Missouri (State v. Jeffors (1877), 64 Mo. 376).

Our study does not reveal that the other three minority States have passed upon the question. However, it is stated in 15 Am. Jur., Criminal Law, § 478, page 134: 'Where enough information appears in other parts of the record, or official memoranda, entered at the time of the proceeding of the court, to show that a mistake has been made by the clerk, the authorities are almost, if not quite, unanimous in holding that the correction may be made.' This is upon the theory, as expressed in Freeman on Judgments, Vol. 1, § 164, that 'The term 'record' as used in this connection has not ordinarily been given a strict technical significance but covers all writings, minutes, entries, and files in the case, which are sometimes designated as 'quasi records'.'

On the other hand, the appellate courts in twenty-three States adhere to the majority rule, which also obtains in the Federal courts. Kelly v. U.S. (1885) 27 Fed. 616; Re Wight (1889), 134 U.S. 136, 33 L.ed. 865, 10 S.Ct.Rep. 487; 5 A.L.R. 1127-1141.

The majority rule holds that a court has inherent power to correct any clerical error or misprision in the record so as to cause its acts and proceedings to be set forth correctly; that this power may be exercised after the expiration of the term as well as during the term, when it appears to the court that the justice and truth of the case require it; and that in allowing the amendment the court may act on any competent evidence. 15 Am. Jur., Criminal Law, § 478, pp. 133, 134; 21 C.J.S., Courts, § 227, p. 422; 5 A.L.R. 1127, supra.

Irrespective of our former holdings we feel that in furtherance of the administration of justice we should now adopt the majority rule as the law of this jurisdiction.

The power to amend should not be confounded with the power to create. Gagnon v. U.S., 193 U.S. 451, 48 L.ed. 745, 24 S.Ct. 510. While the power is inherent in the court, it is restricted to placing upon the record evidence of judicial action which has actually been taken, and presupposes action taken at the proper time. Under the rule the amendment or nunc pro tunc entry should not be made to supply an error of the court or to show what the court should have done as distinguished from what actually occurred. The court's authority in this connection extends no further than the power to make the record entry speak the truth. Jacks v. Adamson, 56 Ohio St. 397, 47 N.E. 48, 60 Am.St.Rep. 749; 30 Am. Jur., Judgments, § 109, pp. 875, 876.

More specifically, the purpose of a nunc pro tunc entry is to correct mistakes of the clerk or other court officials, or to settle defects or omissions in the record so as to make the record show what actually took place. It is not the function of such entry by a fiction to antedate the actual performance of an act which never occurred, to represent an event as occurring at a date prior to the time of the actual event, 'or...