Lewis v. State

• Decision Date: 16 December 1913
• Citation: 64 So. 537,10 Ala.App. 31
• Parties: LEWIS v. STATE.
• Court: Alabama Court of Appeals

64 So. 537

10 Ala.App. 31

LEWIS v. STATE.

Court of Appeals of Alabama

December 16, 1913

Rehearing Denied Feb. 3, 1914

Appeal from Circuit Court, Macon County; S.L. Brewer, Judge.

Sim Lewis was adjudged guilty of murder in the first degree, and he appeals.Affirmed in part, and reversed in part, and remanded.

The original judgment showed a finding by the jury of guilty of murder in the first degree, and a fixing of a punishment of imprisonment in the penitentiary for a term of 20 years.This judgment seems to have been rendered on the 24th day of October, 1912.On October 31, 1913, the judgment was amended nunc pro tunc on motion of the solicitor heretofore filed so as to show a finding by the jury of guilty of murder in the second degree, and the fixing the same penalty for 20 years.No facts are stated in the motion as a basis for the motion.

O.S Lewis, of Tuskegee, for appellant.

R.C Brickell, Atty Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

WALKER, P.J.

The motion for the amendment of the judgment nunc pro tunc, in setting out the verdict rendered by the jury and a different verdict as it appears in the part of the minute entry which purports to recite the verdict rendered, shows the commission of a clerical error, which was amendable at a subsequent term by an entry made nunc pro tunc.The recitation in the minute entry of the fact of the rendition of the verdict, and of the contents of it, was the performance by the clerk of a clerical function.The miscopying of the verdict in such entry was a clerical error, which may be corrected nunc pro tunc by an entry properly reciting the facts as shown by the verdict itself.Code, § 4140;Whorley v. Memphis &amp Charleston R. Co.,72 Ala. 20.It may be conceded that the motion did not disclose a state of facts authorizing the trial court at a subsequent term to amend that part of its judgment which specified the offense of which the defendant was adjudged guilty, as there was a failure to show that the action of the court in that regard was different from that shown in the original entry.Incorrect judicial action is not the subject of correction by a judgment nunc pro tunc entered at a subsequent term.A.G. Story Mercantile Co. v McClellan,145 Ala. 629, 40 So. 123;Wilmerding v Corbin Banking Co.,126 Ala. 268, 28 So. 640.But the motion as a whole was not subject to the demurrer interposed to it, as it showed, as above stated, a clerical error in the original minute entry which properly could be corrected by an entry made nunc pro tunc.The defendant did not, by motion to strike or otherwise, raise the question of the sufficiency of the showing made by the separable feature of the motion which sought a correction of the judgment so far as it evidenced judicial action on the verdict rendered.It follows that the court was not in error in overruling the demurrer to the motion as a whole.

The record in the case showed the rendition by the jury of a verdict of guilt.On the hearing of the motion there was evidence going to prove that the original verdict had been lost, and that it could not, after diligent search, be found.This evidence was not controverted.In this situation the court had inherent power to substitute that paper on proper evidence of its contents, and such contents were capable of proof by parol.Bradford v. State,54 Ala. 230;Dunn v. State,60 Ala. 35;Southern Ry. Co. v. Dickens,163 Ala. 114, 50 So. 109.We find no error in the rulings of the court on objections to evidence as to the contents of the verdict rendered by the jury.The evidence on that subject was such as to support a finding that the verdict as rendered was in the following language: "We, the jury, find the defendant guilty of murder in the second degree, and fix his punishment at imprisonment in the penitentiary for a term of twenty years."The only difference between this verdict and the one set out in the original minute entry is that in the latter the word next preceding "degree" was "first," instead of "second," thus showing a finding that the defendant was guilty of murder in the first degree.We are of opinion that under the evidence the court was warranted in correcting the minute entry so as to make it recite the verdict as it was found to have been rendered.

The bench notes made by the presiding judge show the following entry of the date of the rendition of the verdict: "J.&amp V. guilty; murder in the 1st degree, and fix punishment at twenty years in the penitentiary"--and the following entry, dated the next day: "Deft. formally sentenced to the penitentiary for 20 years."These quasi record entries, standing by themselves, and in the absence of anything else showing judicial action on the verdict rendered, imported a direction to the clerk to enter as the judgment of the court one adjudging the defendant guilty of murder in the first degree, and sentencing him to imprisonment in the penitentiary for 20 years.As to these features of the original entry it conformed to the directions so given by the presiding judge to the clerk.And there was nothing of record or quasi of record to indicate that the judicial action taken on the verdict was in any respect other than what is shown by the original minute entry as written out by the clerk.The improper action of the court in adjudging the defendant guilty of murder in the first degree on a verdict finding him guilty of murder in the second degree cannot be treated as a clerical misprision, or be corrected by a nunc pro tunc entry.It is an error or mistake committed by the court in the exercise of its judicial function, which cannot be corrected by it at a subsequent term.It follows that the trial court was without power to change this feature of the judgment which by the appeal is presented to this court for...