State ex rel. Conway v. Blake

• Decision Date: 13 November 1894
• Parties: STATE EX REL. CONWAY v. BLAKE, JUDGE. CONWAY v. STATE
• Court: Wyoming Supreme Court

38 P. 354

5 Wyo. 107

STATE EX REL. CONWAY v. BLAKE, JUDGE.

CONWAY v. STATE

Supreme Court of Wyoming

November 13, 1894

Indictment filed August 25, 1891.

MANDAMUS to District Judge, and ERROR to District Court of Natrona County. HON. JOHN W. BLAKE, Judge.

John C Conway was indicted for the crime of murder in the first degree. The record showed that during the trial, and after the prosecution had rested its testimony in chief, the plea of not guilty was withdrawn, a plea of guilty of murder in the second degree entered, and the jury discharged. Subsequently a motion, supported by affidavits, was filed to amend the record. The affidavits were ordered stricken from the files. A motion in arrest of judgment was made and overruled. Sentence was thereupon pronounced. Another motion accompanied by affidavits, was filed to amend the record of the sentence, and still a further motion similar to the first but without affidavits, was made to amend the record, which was overruled. The particular purport of the motions and affidavits to amend the record is set out in the opinion. The district judge refused to permit any of such affidavits to be incorporated in the bill of exceptions, and refused to sign any bill embracing them. A writ of error was allowed by the chief justice; and an ancillary application was made for mandamus to compel the judge to sign a bill of exceptions including the affidavits. The main case, and the application for mandamus were heard together and disposed of at the same time by the following opinion. The application for mandamus was denied, and the petition for, and the writ of error were dismissed. The petition for writ of error was not presented within the period fixed by statute. The particular contention on behalf of the defendant was that he had not personally signified any assent to the withdrawal of his plea of not guilty, and had not personally authorized or given any plea of guilty. The other material facts are stated in the opinion.

Writ denied and dismissed.

W. R Stoll and F. H. Harvey, for relator, and plaintiff in error.

The affidavits contained the only evidence upon the question of the manner of the alleged plea of guilty. They constitute proper matter for the bill of exceptions. A bill is defective which omits evidence, where on its face it appears there was such evidence and exceptions concerning it. (Harvis v Tomlinson, 130 Ind. 426; People v. Pearson, 2 Scam., 189; Poteet v. County, 30 W.Va. 58; Powell v. Tarry's Admr., 77 Va. 250; Crane v. Judge, 24 Mich. 512; N. Y. Pub. Co. v. Rothbery, 112 N.Y. 592; Dillard v. Dunlop, 83 Va. 755; High Ex. L. Rem., secs, 209, 210; State v. Marsh, 119 Ind. 394; Mfg. Co. v. Haike, id. 47; Saxon v. State, 116 id., 6; 112 id., 263; 104 id., 363; 102 id., 418.) Any immateriality of the affidavits is no justification for the refusal to allow them in the bill. A return to an alternative writ of mandamus which does not meet it by direct averments, is demurrable. (Moses on Mand., 210; High, 400, 466-474; Reichenbach v. Ruddach, 121 Pa. 18; Com. v. Comrs., 37 id., 277; In re Prospect Brew. Co., 127 id., 523; Woodruff v. R. R. Co., 59 Conn. 63; People v. Ohio Gr. Town, 51 Ill. 191; Harwood v. Marshall, 10 Md. 451.) Appellate tribunals possess jurisdiction to review a ruling respecting an application to amend the record. (Elliott App. Pro., sec. 206; Harris v. Tomlinson, 13 Ind. 426; Welsh v. County Ct., 29 W.Va. 63; Rev. Stat., secs. 2352, 2355, 2681-82.) A ruling which passes upon the merits of the controversy, or affects substantial rights of the parties is not an exercise of discretionary power. (Elliott, sec. 603; Powell App. Pro., n. 2, Appendix, 406; Ins. Co. v. Tomlison, 68 N.Y. 215; Rawley v. Benthugsen, 16 Wend., 369; Buell v. Street, 9 Johns., 443; Bunk v. Griffith, 2 Wis. 324; Exp. Trust. Co., 129 U.S. 206; R. S., sec. 3126.) Judicial discretion is reviewable where improperly exercised. (Carr v. Moses, 87 Mo. 447; Cook v. Spears, 2 Cal. 409; Bank v. Treadwell, 34 Barb., 553; Elliott, 600; Powell, 72; Rowell v. Small, 30 Me. 30; Avery v. Bowman, 39 N.H. 393; Freeman v. Morris, Busbee (N. C.), 287; McElwain v. Corning, 12 Abb., 16; 3 Wend., 366; 1 Ired., 106; 61 Wis. 222; 2 Jones, N.C. 400; 12 Abb., 28; 50 N.Y. 296; 2 Abb., N. Y. App., 340; R. S., sec. 2501.) The assertion by the judge upon the journal that the record was practically and substantially true can add nothing to the record as it stands. That cannot prevent a review of the action of the trial court. Even if such action was discretionary it may be reviewed, because of: 1. Abuse of discretion. 2. Mistake in the record. 3. The decision, shown by reasons assigned, was based on legal and not discretionary grounds. The record may be amended by any sufficient evidence even after the term. (Elliott, sec. 213; Freeman on Judg., secs. 61, 62; 1 Black on Judg., sec. 135; Wright v. Nicholson, 134 U.S. 136; Pleyte v. Pleyte, 15 Colo. 44; Clark v. Lamb, 8 Pick. 415; Weed v. Weed, 25 Conn. 337; Hollister v. Judges, 8 O. St., 201; 53 Ark. 250; 1 Black, secs. 153-156; Freeman, 69-70.) Affidavits in support of motions to amend, and contradictory thereto are competent evidence. (R. S., sec. 2611; Forquer v. Forquer, 19 Ill. 68; Stockdale v. Johnson, 14 Ia. 178; Doane v. Glen, 1 Colo., 454; Doe v. Litherberry, 4 McLean, 442; Welsh v. Keene (Mont.), 21 P. 25; State v. Harrison, 104 N.C. 728; N. Y. Pub. Co. v. Rothery, supra; 46 Ind. 282; 45 Cal. 118; 67 Ia. 352; 4 Colo. 348; 29 Kan. 71; 2 How., 268.) Under no circumstances does a nod of the head constitute a valid plea by defendant. (People v. McCrory, 41 Cal. 458.) One part of a record may be aided or impeached by another. (Jester v. Spurgeon, 27 Mo. App., 477; Cloud v. Inhabitants, &c., 86 Mo. 367.) The defendant is required to answer the question of the court as to his guilt, by saying "guilty" or "not guilty." (R. S., secs. 3270, 3273.) A plea must be voluntary, and personal. The record must show affirmatively a strict compliance with the statute. (Saunders v. State, 10 Tex. App., 336; Marks v. State, id. 334.) A plea by an attorney in a felony case is a nullity. (1 Bishop Crim. Pro., sec. 268; 1 Wharton's Crim. L., sec. 530; 1 Chitty's Crim. L., 416-17, 436, 472; Stephen's Crim. L., 290; Barbour's Crim. Tr., 300, 304; 1 Arch. Crim. Pr., 330, n. 1; McQuillen v. State, 8 S. & M., 595; Sperry v. Com., 9 Leigh, 623; State v. Conkle, 16 W.Va. 736; Wilson v. State, 42 Miss. 639; Warrace v. State, 27 Fla. 362; Saunders v. State, supra; Cachute v. State, 50 Miss. 165; People v. McCrory, supra; People v. Thompson, 4 Cal. 239; Dunn v. Com., 6 Pa. 384; State v. Meekins, 41 La. Ann., 543.) It is only when defendant stands mute or pleads evasively that a plea can be entered for him, and then it must be "not guilty." (R. S., sec. 3273.) If a defendant has submitted to a trial and is convicted, the record need not necessarily show that a plea of "not guilty" was personally made. (Maxwell's Crim. Pro., 541; Allyn v. State, 21 Neb. 593; State v. Hayes, 67 Ia. 27; State v. Green, 66 id., 11; Billings v. State, 107 Ind. 54; State v. Cassady, 12 Kan. 423; Terr'y v. Shipley, 4 Mont. 468.) Assuming the withdrawal of the plea of not guilty, the failure to arraign the defendant was reversible error. (State v. Hunter, 42 La. Ann. , 814; 27 id., 227; 30 id., 367; id., 311; 31 id., 387; State v. Stewart, 26 S.C. 125; State v. West, 84 Mo. 440; 1 Bish. Crim. Pro., sec. 733; 3 Wharton's Crim. Pr., sec. 3155; 1 Arch. Cr. Pr., 351.) The defendant is now held without authority of law, and must be discharged by the appellate court. (Const., Art. 1, sec. 11; R. S., secs. 3355-56, 3358-60; 1 Bish. N. Cr. L., sec. 1013, 1041, 1044-45; O'Brien v. Com., 9 Bush., 333; Hines v. State, 24 O. St., 134; People v. Webb, 38 Cal. 467; Greeber v. State, 3 W.Va. 699; State v. Leunig, 42 Ind. 541; Lee v. State, 26 Ark. 260; Bell v. State, 44 Ala. 393; State v. Calendine, 8 Ia., 288; People v. Horn, 70 Cal. 17; Pizano v. State, 20 Tex. App., 139; Maden v. Emmons, 83 Ind. 331; State v. Moon, 41 Wis. 684; Exp. Maxwell, 11 Nev. 428; Hilands v. Com., 11 Pa. 1; Adams v. State, 99 Ind. 244; Foster v. State, 88 Ala. 182; State v. McKee, 1 Bailey, S. C.; 14 O., 295; 12 O. St., 214; 14 id., 493; 48 Mich. 554.)

Charles N. Potter, Attorney General, for the State, and for respondent in mandamus proceeding.

Although a trial judge may be required by mandamus to sign a bill of exceptions, an appellate court will not, by mandamus or otherwise, compel him to incorporate a particular thing in a bill, or to sign, or settle, any particular bill of exceptions. (Ex parte Bradstreet, 4 Pet., 102; People v Jameson, 40 Ill. 93; Shepard v. Payton, 12 Kan. 616; Jameson v. Reed, 2 G. Greene, 394; State v. Noggle, 13 Wis. 380; People v. Anthony, 129 Ill. 218.) The affidavits misstated what occurred in the presence of the judge. It was the duty of the judge to decide and have shown by the record what occurred with reference to defendant's plea. Finding that the affidavits were untrue to his personal knowledge, as to matters occurring in court in his presence, he ordered the affidavits stricken from the files. They, therefore, could not form any part of a bill of exceptions, or any part of the record. The record of a court is to be made by the judge according to his own knowledge and recollection. It imparts absolute verity in an appellate court, as well as against collateral attack. Any other rule would be dangerous in the extreme. No case can be found where an appellate court has amended a record of a trial court in a material matter when the trial judge has said that the matter desired to be incorporated was not true. The court will not order any record to be amended or corrected, upon mere parol testimony, unaided by anything in the...