Hubbard v. People

• Decision Date: 16 April 1902
• Citation: 63 N.E. 1076,197 Ill. 15
• Parties: HUBBARD v. PEOPLE.
• Court: Illinois Supreme Court

197 Ill. 15

63 N.E. 1076

HUBBARD

v.PEOPLE.¹

Supreme Court of Illinois.

April 16, 1902.

Error to circuit court, Franklin county; E. D. Youngblood, Judge.

Harry Hubbard was convicted of murder, and brings error. Reversed.

W. S. Cantrell and C. H. Layman, for plaintiff in error.

H. J. Hamlin, Atty. Gen., T. J. Myers, State's Atty., and Geo. B. Gillespie, for the People.

HAND, J.

The defendant was tried at the May term, 1900, of the circuit court of Franklin county, for the murder of William Espy; the Honorable E. D. Youngblood, judge, presiding. The jury returned a verdict of guilty, and fixed his punishment at imprisonment in the penitentiary for the term of 14 years. After overruling a motion for a new trial and in arrest of judgment, the court entered judgment on the verdict, whereupon the defendant sued out a writ of error from this court, returnable to the October term, 1901, and, as grounds for reversal, assigned the following errors: (1) ‘The record fails to show that the jury were impaneled and sworn; (2) the record fails to show that the defendant was present at the trial when the verdict was returned, or at the time sentence was pronounced; and (3) the record fails to show that the jury were kept in charge of a sworn officer.’ Thereupon, upon the motion of the attorney general, the case was continued, and a writ of certiorari was ordered to issue to the clerk of the circuit court of Franklin county, requiring him to send up a complete record, etc. At the November term, 1901, of the circuit court of Franklin county, on motion of the state's attorney (notice of such motion having been served upon the defendant and his attorneys), the court, the Honorable E. E. Newlin, judge, presiding, caused the case to be redocketed, and such proceedings were had that an order was entered amending the record nunc pro tunc, showing (1) that the jury were impaneled and sworn; (2) that the defendant was present at the trial when the verdict was returned, and at the time sentence was pronounced; and (3) that the jury were kept in charge of a sworn officer,-to which action of the court the defendant excepted, and presented a bill of exceptions, and has sued out a writ of error from this court, which writ of error has been consolidated with the former writ of error, and the two cases will be disposed of by this opinion.

It appears from the bill of exceptions that the record was amended nunc pro tunc upon the affidavit of the shorthand reporter, which was as follows: ‘I was reporter at May term, 1900, of the Franklin county circuit court. Reported the case of People v. Hubbard, on charge of murder. Made stenographic notes of all steps and proceedings, appearance of parties and attorneys, impaneling and swearing of jurors and officers, and all other steps deemed material to be kept and recorded. So far as affiant made notes, he truly recorded the same. Affiant has made excerpts from said notes in typewriting, which he attaches hereto as part of affidavit. Said excerpts show correctly the proceedings of said trial as shown and recorded in stenographic notes of affiant made concurrently with the occurrence of the several steps of said trial. So far as excerpts purport to be a record of said trial, the same are full and complete,’-to which was attached, marked ‘Exhibit A,’ the excerpts, extended in typewriting, referred to in said affidavit, and the affidavit of the clerk of the circuit court, which was as follows: ‘I am clerk of the circuit court of Franklin county. Have been since before May term, 1900. Was in attendarce at May term, 1900, during trial of People v. Hubbard, on charge of murder. Know that the defendant was present at each and every sesssion of court during taial, in person and by counsel. Jury were impaneled and sworn before any statement of counsel, or before any evidence was heard. Jury were in charge of sworn officer. Defendant was present when verdict was returned into court, and when sentence was pronounced against him. I did not write up record as I knew it to be, but wrote it from the minutes of the judge entered on his docket.’

The record in a criminal case may be amended after the term at which it is made has elapsed, by an order of court entered nunc pro tunc, when by reason of a clerical misprision it does not speak the truth. Kennedy v. People, 44 Ill. 283;Phillips v. People, 88 Ill. 160;Gore v. People, 162 Ill. 259, 44 N. E. 500;Knefel v. People, 187 Ill. 212, 58 N. E. 388,79 Am. St. Rep. 217. The amendment must, however, be based upon some official or quasi official note or memorandum or memorial paper remaining in the files of the case, or upon the records of the court; and a fact proposed to be incorporated into a record to supply an omission cannot rest in the recollection of the judge or other person, or be based upon ex parte affidavits or testimony after the event has transpired. Dougherty v. People, 118 Ill. 160, 8 N. E. 673;Tynan v. Weinhard, 153 Ill. 598, 38 N. E. 1014;Village of North Chillicothe v. Burr, 178 Ill. 218, 52 N. E. 853; Railroad Co....