Rhodes v. State

• Decision Date: 31 January 1867
• Citation: 29 Tex. 188
• Parties: PATRICK RHODES v. THE STATE.
• Court: Texas Supreme Court

29 Tex. 188

PATRICK RHODES

v.THE STATE.

Supreme Court of Texas.

January, 1867.

The proper mode of amending a record in regard to an indictment, would be by an order, at the time when the amendment is made, and not by erasing or altering an order entered upon the minutes of the previous term of the court. Crim. Proc. art. 508; Pas. Dig. art. 2977.

Every court has the right to judge of its own records and minutes; and if it appear that an order was actually made at a former term, and omitted to be entered by the clerk, the court may at any time direct such order to be entered on the records as of the term when it was made. 14 Tex. 456;28 Tex. 227.

A record amended, nunc pro tunc, stands as if it had never been defective, or as if the entry had been made at the proper time.

Where the indictment substantially charges the offense in the language of the statute, it is sufficient. Pas. Dig. art. 2863, note 720.

APPEAL from Walker. The case was tried before Hon. JAMES R. KENNARD, one of the district judges.

Patrick Rhodes, a freedman, was indicted for selling liquor in quantities less than a quart, without having obtained a license therefor. The defendant excepted to the indictment, on the ground, that it did not appear to have been presented or returned as required by law. The defendant moved to amend the indictment and the record, so as to obviate the exceptions. The leave to amend was granted, and the record amended; but if the indictment was amended, the record does not show it. The prisoner was found guilty, and fined $50, from which judgment he appealed, and assigned for error, the overruling his exceptions to the indictment, allowing the amendment of the record, and because neither the original nor the amended indictment stated any offense, as required by article 389 of the code of criminal procedure. Pas. Dig. art. 2858, note 719.

No briefs appear in the record, but the following is the motion of A. P. Wiley for a rehearing:

“The appellant in the above entitled cause, by his counsel, respectfully asks this honorable court for a rehearing of the same, and in support thereof submits, that it nowhere appears in the record that the style of the action or the offense charged in the pretended indictment was noted on the minutes of the court as required by article 389 of the code of criminal procedure. This article prescribes the mode of authenticating the indictment, as the act of the grand jury, and the fact of its presentment at the time of filing should appear affirmatively, and not be left to intendment. The absence of such entry, therefore, and it nowhere appearing to have been supplied by the requisite amendment, is an error apparent on the record, and needs no statement of facts to enable this honorable court to revise and correct said error.” Cloud v....