Rupinski v. United States

• Decision Date: 04 February 1925
• Docket Number: No. 4142.,4142.
• Citation: 4 F.2d 17
• Parties: RUPINSKI v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

4 F.2d 17 (1925)

RUPINSKI v. UNITED STATES.

No. 4142.

Circuit Court of Appeals, Sixth Circuit.

February 4, 1925.

Wm. K. Clute and John J. Smolenski, both of Grand Rapids, Mich., for plaintiff in error.

Howard A. Ellis, Asst. U. S. Atty., of Grand Rapids, Mich. (Edward J. Bowman, U. S. Atty., of Grand Rapids, Mich., on the brief), for the United States.

Before DENISON, MACK, and KNAPPEN, Circuit Judges.

MACK, Circuit Judge.

Defendant was indicted under the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) on five counts; the first three for sales in three different months, the fourth for manufacturing, and the fifth for possession. The record recites that, the cause being for trial, on motion of the district attorney, count 2 was dismissed. It further recites that the jury "found the defendant guilty as charged." The court, in charging the jury, said that count 3 had been dismissed. The sentence passed was six months under count 1, an additional six months under count 2, an additional four months under count 4, and a fine of $500 under count 5.

1. As the specific date of sale named in the indictment is not material (Jones v. U. S., 296 F. 632 C. C. A. 4), the only assignment of error relating to the first count fails.

2. While the clerk's blotter, the book of original entry, indicates that count 3 had been dismissed, the journal of the court, through an error on the part of the clerk, recites the dismissal of count 2. When the error was discovered, long after the term had passed, a motion was made and order entered nunc pro tunc correcting the record, and thereupon a motion was made in this court to correct the printed transcript of record. It is urged in behalf of the defendant that neither the court below nor this court has power to alter the record after the term, and therefore the dismissal of count 2 as recited in the record must stand. While the general rule is that the records and decrees of the court cannot be altered after the term, there is a well-recognized exception in the case of mere clerical errors. Phillips v. Negley, 117 U. S. 665, 6 S. Ct. 901, 29 L. Ed. 1013; Sibbald v. U. S., 12 Pet. 488, 492, 9 L. Ed. 1167; U. S. v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. The motion to rectify the record will accordingly be granted. It might even be doubted whether the conviction under count 2 might not be sustained without an amendment of the record. The record unamended is inconsistent; it recites that count 2 was dismissed upon motion of the district attorney; it also recites that the trial judge charged, without any exception being noted thereto, that count 3 had been dismissed, but that the other four counts stand. With the evidence sufficient to warrant the finding of a conviction under count 2, the record may well be deemed to be self-correcting.

3. Count 3, it is admitted, was dismissed, and no conviction found thereunder.

4. The conviction under counts 4 and 5 is sought to be set aside upon the ground that the evidence to sustain the same was obtained by an illegal search warrant. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647. The search warrant was obtained on September 7, 1923. It was issued upon the...