In re McQuown

• Decision Date: 05 September 1907
• Citation: 91 P. 689,19 Okla. 347,1907 OK 117
• Parties: In re McQUOWN.
• Court: Oklahoma Supreme Court

91 P. 689

19 Okla. 347, 1907 OK 117

In re McQUOWN.

Supreme Court of Oklahoma

September 5, 1907

Syllabus by the Court.

On proper application and notice a court may by nunc pro tunc order cause its records to speak the truth and be amended, so as to record any part of the proceedings had in a cause which by inadvertence or mistake the clerk has omitted to record.

[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 368.]

One who is charged with a crime triable by a jury at common law is required by our statute to be tried by a jury, and cannot waive such right. A judgment of conviction, pronounced by a court upon a plea of not guilty, without the intervention of a jury, is void; and a person imprisoned upon such judgment is entitled to his discharge upon habeas corpus.

[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, § 198.]

Application by C. W. McQuown for a writ of habeas corpus. Petitioner discharged.

Geo. T Webster, for plaintiff.

M. L Holcombe, Co. Atty., for respondent.

BURFORD C.J.

The petitioner was convicted in the probate court of Custer county for a violation of the law for the protection of game, and was sentenced to pay a fine of $100 and costs, and to stand committed to the county jail in default of payment. He appealed to the district court, but there dismissed his appeal before trial, and the cause was remanded to the probate court to be executed. The defendant upon arraignment pleaded not guilty, waived a jury, and tried the case to the court.

The original record of the judgment omitted to state that the defendant was ordered committed to jail in default of payment of the fine adjudged against him, or that he waived a jury trial. Subsequently the court, on motion of the county attorney, found that the defendant did, on arraignment, waive a jury, and that in rendering the judgment and pronouncing judgment the court did in fact adjudge that upon failure to pay the fine and costs that the defendant be committed to the county jail of Custer county until the fine and costs should be paid, or until he had served one day for each $2 of said fine and costs, and the court ordered nunc pro tunc that the record be made to speak the truth, which was accordingly done. The petitioner contends that that judgment so entered and recorded is void and of no effect, for the reason that the record was amended after the expiration of the term of court at which the judgment was rendered, and a number of authorities are cited sustaining the proposition that the clerk cannot amend his records after the term at which the proceedings were had. We find no fault with the rule as here contended for, but it has no application to the facts in this case. The orders, judgments, and proceedings of a court of general jurisdiction are required to be recorded by the clerk of the court. The failure of the clerk or recording officer to make such record does not vitiate the proceedings. The clerk may, at any time during the term at which the proceedings are had, correct, amend, or supply omissions to make the record speak the truth; and the court may at any time, upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order nunc pro tunc cause its records to recite the truth, and may supply any omission from its records; and this may be done in a criminal as well as in a civil cause. Such record, when so supplied, relates to the time when the proceedings were in fact had, and may make valid that which was apparently defective. Wight v. Nicholson, 134 U.S. 136, 10 S.Ct. 487, 33 L.Ed. 865; Gonzales v. Cunningham, 164 U.S. 612, 17 S.Ct. 182, 41 L.Ed. 572; Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean (U. S.) 379, F. Cas. No. 10,101; State v. Bilansky 3 Minn. 246 (Gil. 169); Bishop's New Crim. Proc. § 1345. The proceedings had before the probate court for the purpose of determining what judgment was in fact rendered, and its finding and order for a nunc pro tunc order perfecting the record, are strictly in accord with recognized practice, and conform to what is required by due process of law. We are not permitted in this kind of a proceeding on habeas corpus to review or correct errors, and we need not decide whether the proceedings were in every respect free from error. The court had power to make its records speak the truth, it had jurisdiction of the parties and of the subject-matter, and it proceeded in the manner recognized by law. The proceedings are not void and may be enforced.

The next contention is that the judgment is void for the reason that the petitioner was entitled to a jury trial, and that he could not lawfully waive such right, and that a judgment rendered by the court upon a plea of not guilty, without the intervention of a jury, is void. The statutory provisions involved are as follows: Section 5142, Wilson's Rev. & Ann. St. 1903: "No person can be punished for a public offense except upon legal conviction in a court having jurisdiction thereof." Section 5151: "The procedure, practice and pleadings in the district courts of this territory in criminal actions or in matters of a criminal nature, not specifically provided for in this chapter, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court." Section 5158: "No person can be convicted of a public offense unless by the verdict of a jury accepted and recorded by the court, or upon a plea of guilty, or upon final judgment for or against him upon a demurrer to the indictment, or upon a judgment of a police or justice's court in cases in which such judgment may be lawfully given without the intervention of a jury or grand jury." Section 5434: "An issue of fact arises, first, upon a plea of not guilty; or, second, upon a plea of a former conviction or acquittal of the same offense." Section 5435: "Issues of fact must be tried by a jury." Section 5436: "If the indictment is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant. If, however, his presence is necessary for the purpose of identification, the court may, upon the application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial."

This brings us to the question: Can a defendant, charged with a crime and entitled to a jury, waive the jury and try the case to the court? Upon this question a casual examination of the decisions would lead to the impression that there is considerable conflict. But a careful and discriminating review discloses the fact that the decisions holding that the accused may waive a jury are based upon statutory or constitutional provisions. A great many of the states of the Union have constitutional or statutory provisions to the effect that a defendant in a criminal cause shall be tried by a jury, unless he waive the jury and consent to trial by the court. We believe the authorities are practically unanimous in holding that a jury cannot be waived, unless such waiver is authorized by statute. In Hughes on Criminal Procedure, § 2979, the author says: "A jury cannot be waived in a felony case, even by agreement or consent of the defendant. It is jurisdictional, and consent can never confer jurisdiction. The defendant may waive his right to a jury trial in a prosecution for a misdemeanor, and be tried by the court instead of a jury, where such waiver has been authorized by statute, and the courts have upheld the constitutionality of statutes providing for such waiver in misdemeanor cases." In Bishop's New Criminal Procedure, § 893, it is said: "One form of waiver is where, authorized by statute and the Constitution not withholding any needful jurisdiction from the tribunal, the defendant consents to be tried by the court without a jury. He cannot afterward complain."

Rapalje in his Criminal Procedure (section 150), goes more fully into the question, saying: "There are few questions of law upon which the courts are more evenly divided in opinion than the problem whether it is legally competent for a defendant in a prosecution for felony to waive a trial by jury and consent to be tried by the court, unless, as in the case in some of the states, the Constitution allows a jury to be waived in such cases as the Legislature may direct. Where the Constitution so provides, the Legislature alone has the power to determine in what classes of cases a jury trial may be waived. The words 'prescribed by law,' in the...