State ex rel. Graves v. Primm

Citation61 Mo. 166
Decision Date31 October 1875
CourtUnited States State Supreme Court of Missouri

Mandamus to St. Louis Criminal Court.

D. W. Sadler, for Relator.

I. The judgment entered was neither in form or in fact a nolle prosequi, but one “setting aside” the indictment. (See

2 Bouv. L. D., 231; 6 Mod., 261; 2 Mass., 172.) And nolle prosequi being ordered, it was the power and duty of the court to amend the record, so as to conform to the facts. (Priest vs. McMaster, 52 Mo., 60; State vs. Clark, 18 Mo., 434; 45 Mo., 571.)

II. The accused having exhausted his remedy in the criminal court, and having no other remedy, is entitled to mandamus. (Williams vs. Cooper Co. Ct., 27 Mo., 225; State, ex rel.Hixon, vs. Lafayette Co. Ct., 41 Mo., 38; 23 Mo., 449; 41 Mo., 221; 48 Mo., 112; State vs. Governor, 39 Mo., 388; see also, Vernon vs. Beggs, 1 Mo., 117, 274; State vs. Wilson, 49 Mo., 146; State ex rel. vs. Lafayette Co. Ct., 41 Mo., 221; Astor vs. Chambers, 1 Mo., 191; 10 Mo., 742; Ex parte Crane, 5 Pet., 190; 13 Pet., 279, 404; Judges vs. People, 18 Wend., 79; People vs. Judges, 20 Wend., 658; Ex parte Cox, 10 Mo., 742.)

Stanford Graves, in propria persona, cited 19 Mo. 408; 4 Ohio, 45; 3 Cow., 89; 14 Me., 263; 20 Wend., 602; 3 Mont., 295; 52 Mo., 60; 45 Mo., 571; 18 Mo., 434; 12 Pet., 492; 11 Mass., 417; 2 Ohio, 32; Cowp., 378; Tap. Mand., 238; 3 Blackst., 110; Gen. Stat. 1865, p. 853, § 12; Id., p. 744, § 5; Bouv. L. D., 648.

Hockaday, Attorney General, for Respondent.

I. Relator seeks by mandamus to compel the criminal court to expunge its judgment on the strength of parol evidence, at a subsequent term. This, manifestly, cannot be done. (Priest vs. McMaster, 52 Mo., 62; 3 Bl. Com., 24; 12 Pet., 492; Tap. Mand., 228; 12 Mo., 598; 8 Mo. 235; 11 Mo., 511.)

II. Judge Primm's private docket was only a memorandum book and no part of the record. (2 Ohio, 129.)

III. It is immaterial whether the words “quashed,” “set aside” or “reversed” or nol. pros. were used. The object clearly appears from the records to be, the holding of defendant to answer a new indictment, because the first was defective in law. There is but one case where a “ nolle prosequi ” operates as an effectual discharge; that is, where it is entered without the defendant's consent, after the jury is sworn. (U. S. vs. Farring, 4 Cr. [U. S. C. Ct.], 465; U. S. vs. Shoemaker, 2 McLean, 114.) In all other cases he may be afterwards re-indicted. Even upon the same indictment fresh process may be awarded. (Chit. Crim. Law 480; Hawks Pr. N. C., vol. 3, p. 613; 13 N. C., 256; State vs. Howard, S. C., 15 Rich., 280; 9 Ala., 76.)

WAGNER, Judge, delivered the opinion of the court.

The relator asks this court to issue a writ of peremptory mandamus to compel the judge of the St. Louis criminal court to amend the records of that court. He states that at the January term, 1873, of the court, an indictment was found against him by the grand jury, charging him with having obtained money under false pretenses from one Bircher, in May, 1870; that the indictment was filed in the criminal court on the 17th day of January, 1873, and on the 18th of July, 1873, the case was set for trial, at which time the relator appeared and announced himself ready; that the circuit attorney, representing the State, then and there refused to prosecute the case further, and entered a nolle prosequi with the leave of the court, and the defendant was thereupon discharged. The petition further states that no other order was made relating to the indictment except simply to nol. pros. the same whilst the defendant and his counsel were in court on that day; but that several days thereafter, after the judgment of nol. pros. on the indictment had been entered against the State, one Voullaire, who was assisting the circuit attorney in the prosecution, drew up an entry for record, entirely different from a nolle prosequi, and applied to the judge of the court, in the absence of the relator and his attorneys, to order the clerk to put the said entry upon record as the judgment of the court; that the judge gave said form of entry to the clerk, and ordered him to place the same upon the records as the court's judgment. It is averred that the entry, as made, entirely changed the judgment of the court as given when the case was called for trial, by making it appear that instead of a nolle prosequi having been entered, the indictment was set aside. The formal judgment as written up, and which is complained of by the relator, states that “this day comes the circuit attorney, who represents the State, as well as the defendant and his attorneys, and, by leave of the court, the circuit attorney says that the indictment pending against the defendant, and upon which he is to be tried, is insufficient and defective in law, and for these reasons he cannot further prosecute the defendant thereunder, and moves the court to set aside said indictment and order the defendant to be recognized and enter into bonds to appear at the next term of the court to answer another indictment for the same offense. Whereupon the court, having fully considered the matter, and being thereof fully advised, doth order, for the reasons stated by the circuit attorney, and with the consent of the said defendant and his attorneys, that said indictment be set aside and defendant be recognized to enter bonds in the sum of five thousand dollars to appear at the next term of this court, to answer another indictment for the same offense; and thereupon it is further ordered that the defendant and his securities be discharged from all further liability by reason of the recognizance heretofore entered into for the appearance of the defendant to answer to the present indictment.”

On the 18th day of September, 1873, three years and six months after the commission of the offense, the grand jury found another indictment for the same offense against the relator; and if the judgment in the first case precluded any further proceedings, the second indictment would be barred by the statute of limitations. Assuming this to be the case, the relator at the next term of the court, after the judgment was written up, filed his motion to correct the records by expunging the judgment and inserting in lieu thereof that the State refused to prosecute, and entered a nolle prosequi. This motion the court refused. To sustain his view of the case, and to show that the record does not correctly represent the proceedings had in the case, the relator has submitted the affidavits of witnesses. But it is an established principle that oral evidence will not be received to impeach the verity of a solemn record. There is no doubt about the proposition that a court may always at subsequent terms set right mere forms in its judgment, or correct misprisions of its clerks, or mere clerical errors, so as to conform the record to the truth. But in all such cases the record should show the facts which authorize the entry. (Gibson vs. Chouteau, 45 Mo., 171; Priest vs. McMaster, 52 Mo., 60.)

On the private docket kept by the judge at the trial, after naming the case, the following entry appears: “cir. att'y says indictment is insufficient, and takes nol. pros. for that reason, and prays the court to hold the defendant over to answer new indictment, which is ordered. Bail taken in $5,000, with John E. Leggett as security. July 18, 1873.” On the minutes kept by the clerk, after stating the title of the case, appears the following entry: Nol. pros. by cir. att'y by reason of defective indictment. Defendant held to answer in the sum of $5,000 to answer new indictment. Recog. $5,000, John E. Leggett, sec'ry.” It will thus be seen by the records made by the officers of the court at the time, that although the words nol. pros. are used, the indictment was discontinued by reason of its defectiveness. The accused was discharged from the old indictment, but he was required to enter into a new recognizance to answer to another indictment which might be found against him for the same offense--which he accordingly did.

There is nothing in the argument that the judgment was written up after the proceedings in the court, and during the absence of the accused. The formal judgments are usually transcribed by the clerks afterwards, and are taken from the minutes or docket entries made by the officers at the time; and if they are truly stated, they are not objectionable on that account. The only real difference in the case is, that the judgment says the indictment was set aside, whilst the relator contends that it should have shown that a nol. pros. was entered. Whatever mere words were used, we must look at the substance. All the records conclusively prove that the relator was not absolutely discharged. The refusal to prosecute was by reason of the defectiveness of the indictment, but he was required immediately to enter into a new recognizance for his appearance, should another indictment be found against him for the same offense. The period prescribed as a limitation for the prosecution of the offense of which the relator stood charged was three years from the date of its commission (2 Wagn. Stat., 913, § 2.) But by the 5th section of the same act, in relation to criminal prosecutions, it is provided that “when any indictment or prosecution shall be quashed, set aside...

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  • Campbell v. Spotts, 30407.
    • United States
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    ...or by some other paper of equal dignity with a memorandum of the judge or clerk. Saxton v. Smith, 50 Mo. 490; State ex rel. v. Primm, 61 Mo. 166; Jackson v. Railroad Co., 89 Mo. 104; Atkinson v. Railroad Co., 81 Mo. 50; Pickel v. Pickel, 251 Mo. 209; Burton v. Burton, 288 Mo. 531. The recor......
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