McNamara v. State

• Citation: 30 S.W. 762,60 Ark. 400
• Parties: MCNAMARA v. STATE
• Decision Date: 13 April 1895
• Court: Supreme Court of Arkansas

30 S.W. 762

60 Ark. 400

MCNAMARA v. STATE

Supreme Court of Arkansas

April 13, 1895

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Judgment affirmed.

F. T Vaughan for appellant.

1. The jury failed to find the degree of murder. Sand. &, H. Dig sec. 2255; 26 Ark. 328; Ib. 534; 34 id. 649-652; 58 Ark. 239; 2 Thomp. Trials, 2633; 57 Ark. 267-9; 1 Bish. Cr. Pr. sec 1005 a.

2. It was error to refuse instruction No. 6 asked by defendant. 34 Ark. 341; 54 id. 284.

3. It was error to admit the evidence of Wait and Guilfoil because (1) no proper foundation laid. (58 Ark. 369; Ib. 372); and (2) because incompetent. The defendant neither cross-examined them, nor was he represented by counsel. 29 Ark. 22; 33 id. 539; 37 id. 324-5; 40 id. 461; 47 id. 180; 58 id. 239; 1 Gr. Ev. 168; 7 A. & E. Enc. Law, p. 75; 1 Bish. Cr. Pr. (2 ed.), secs. 1090-3, 1098; Whart. Cr. Ev., secs. 227-9; 17 S.E. 856; 1 Rich. (S. C.) 124; 19 Ga. 402; 10 Bush (Ky.), 190.

4. Our statute settles the matter. Sand. & H. Dig., sec. 758; 1 Rich. (S. C.) 124; 19 Ga. 402; 6 Miss. 14; 1 Hawk. (N. C.) 344.

5. The minutes kept by a coroner are not competent evidence. 29 Ark. 142.

6. See further on the non-admissibility of such evidence: 5 Hill, 295; 92 Ga. 480; 10 Gratt. 722; 12 Bush. 271; 63 Miss. 450; 17 Ill. 426; 11 F. 34; 3 Rice, Ev. 350; Underhill, Ev., sec. 122; Ib., sec. 123 and note 5; 16 Col. 103.

E. B. Kinsworthy, Attorney-General, for appellee.

1. The certiorari cures all objections to the form of the verdict.

2. On the subject of drunkenness the court followed substantially the doctrine in 34 Ark. 341, and 54 id. 284.

3. The evidence of Wait and Guilfoil was properly admitted. A proper foundation was laid. 29 Ark. 17; Underhill, Ev., sec. 124 and note 2; Whart. Cr. Ev., sec. 227; 33 Ark. 539; 47 id. 181; 58 id. 369; Ib. 240. This case falls clearly within the rule. 29 Ark. 22; 33 id. 539; 40 id. 461; 47 id. 180. See 1 Gr. Ev., sec. 163, and note 2; 1 Bish. New Cr. Pr., sec. 1195; 6 Tex.App. 319; 46 Cal. 45; 92 Ala. 41; 1 Starkey on Ev., 409, 410; 67 Ala. 55; 68 id. 52. When the evidence is written down by the coroner, as long as the written evidence is in existence, it is the proper testimony. 2 Ark. 229; 59 id. 50. Sec. 758 only refers to the admission of the statement of a dead witness. Where the evidence is taken down by the coroner, it can be read against any person who was present at the inquest. This does not exclude the depositions of witnesses who are not dead. 33 Ark. 539; 58 id. 369.

OPINION

WOOD, J.

Appellant was indicted for the crime of murder in the first degree. He was convicted of murder in the second degree, and sentenced to imprisonment for twenty-one years in the State penitentiary. His appeal presents the following questions:

1. The clerk's entry upon the record of the verdict of the jury, as of the day when it was returned into court, was as follows: "We, the jury, find the defendant guilty as charged in the indictment, and assess the punishment at twenty-one years' imprisonment in the State penitentiary. Francis H. Conway, Foreman." On the 29th day of January, 1895, long after the judgment had been entered, but at the same term, the court, upon motion of the prosecuting attorney, corrected the record entry of the verdict so as to make it read as follows: "We, the jury, find the defendant guilty of murder in the second degree, and assess the punishment at twenty-one years' imprisonment in the State penitentiary. Francis H. Conway, Foreman." The court found that this was the true verdict, and ordered the clerk to correct the record so as to make it reflect the facts. This proceeding was in the absence of the defendant. The attorney general suggested a diminution of the record, after the appeal was granted by this court, and brought up by certiorari the record showing the correction made in the entry of the verdict, together with a true copy of the indictment with the verdict endorsed thereon.

The appellant contends that the form of the verdict, as disclosed by the original record entry, was fatally defective in not naming the degree of murder, and that the correction made at a subsequent day in the same term, showing the true form of the verdict, did not cure this defect, for the reason that the defendant was not present when the correction was made.

We need not decide whether the omission to name the degree is reversible error, because the corrected record shows that the verdict was in proper form.

The correction of the record so as to make it reflect the form of the verdict as it was actually rendered by the jury and indorsed by them upon the indictment, having been made during the same term at which the verdict was returned, was not such a substantive step as required the presence of the defendant. The decisions of our own court cited by counsel, showing that a nunc pro tunc entry amending the record cannot be made in the absence of the defendant, are not in conflict, and not in point, as in each case it will be found that the attempt to amend the record was at a subsequent term, or the question did not arise as to the presence of the defendant. In Felker v. State, 54 Ark. 489, the opinion does not state whether or not the nunc pro tunc entry supplying the omission was made at the same term the omission occurred. But an examination of the record of that case shows that the nunc pro tunc entry was made at a subsequent term.

Misprisions of the clerk or other officers may be corrected at any time, so as to make the record reflect the facts as they actually occurred when the parties to the record were present, and this may be done during the term without the presence of either party; for during the term, it is said, the proceedings which were had in a case are "in fieri," the record remains "in the breast of the judges of the court, and in their remembrance, and is subject to such amendment or alteration as they may direct. " Black on Judgment, sec. 153. If any amendment is made in the record, however, even during the term, which affects the substantial rights of the prisoner, or reaches to the merits of his case, then he should be present. But here was a mere clerical mis-prision, arising from the inadvertence of the clerk in not recording the verdict as it was actually rendered in court, and when he was present and heard it read. It was the duty of the clerk to enter up the verdict in the words in which it was rendered, as they appear endorsed upon the indictment. The defendant could in no manner controvert or change the indorsement of the verdict upon the indictment. There was nothing for him to do or suggest in the case. 1 Bish. New Crim. Pro., sec. 269. The entering it upon the record was clerical and formal. He could not claim the right to be present when the clerk entered it upon the record, nor when the judge read it, or had it read for his approval. And there is no more sense in saying that he had to be present when the clerk was made to correct it to conform to the truth. He was present when it was returned into court and read, and when the judgment of sentence was pronounced upon it.

A very different rule obtains after the close of the term. Then it is beyond the power of the court to "amend in any matter of substance or in any matter affecting the merits." Unless the cause is still depending, and the parties are in court, the power of courts, after the close of the term, is confined to the correction of the mistakes or oversights of officers, clerical mis-prisions, and, as a general rule, to make the record reflect only the truth of what was actually done in court. In all cases of this kind, the parties affected are entitled to notice. The prisoner must be present, because at the close of the term the proceedings are no longer in fieri; they become final. The prisoner has the right to expect that his case will be presented to the appellate tribunal upon the record as it passed from under the hand of the trial judge at the close of the term. Therefore any alteration affecting his rights, of which the record is susceptible, must be made in his presence.

2. The evidence fully sustains the verdict for murder in the second degree.

3. The court did not err in refusing to instruct the jury that "they should consider the mental condition of the defendant at the time of the shooting, and if they believe that, at the time, the defendant was sounder the influence of intoxicating liquor that a felonious intent could not be formed in his own mind, the jury should acquit. The burden of proof to show such a mental condition is upon the defendant."

There was not a particle of proof upon which to base this instruction; for, although other witnesses and the defendant himself testified that the defendant had been drinking freely that day prior to the killing, yet there was no proof to justify the court in submitting to the jury to determine whether the condition of the defendant's mind from excessive drink was such as to render him incapable of forming the specific intent to take life. The defendant, on the contrary, testified that he knew "what was going on that day, and at night, too." This was necessary to the theory of self-defense, which he was seeking by his own evidence to maintain, but it was incompatible with the theory of dipsomania presented by the instruction. From the witness stand the defendant was taking a calm retrospect of the occurrences of that eventful day, and the minuteness of detail upon which he entered in reviewing them shows him to have been in the possession of his faculties. Re was doubtless the best judge of his own thoughts, and his positive assertions that he knew "what he was doing," in the absence of evidence of intoxication to the extent of temporary or partial...