HANEY
J.
This is
an original application upon notice for a writ of mandamus
commanding the circuit court within and for Beadle county and
Hon. Loring E. Gaffy, the presiding judge thereof, to
establish and authenticate, by such evidence as the case may
afford, true copies of certain lost or stolen indictments, to
order such copies filed in lieu of the originals, and to
proceed upon such copies as if they were originals. From an
agreed statement of facts it appears "that on the 14th
day of September, 1905, the state of South Dakota, by Thomas
H. Null, acting state's attorney for Beadle county,
suggested the loss of purported indictments Nos. 15, 16, 17,
18, and 19, alleged to have been returned by the grand jury
of Beadle county against the defendant Charles A. Kelley at
the March, 1905, term of said court, and moved upon the
affidavits of Asher F. Pay and Thomas H. Null to substitute
for said lost indictments copies attached to the affidavit of
said Asher F. Pay, being Exhibits D, E, F, G, and H, which
are set out in the application for the writ of mandamus in
this case, *** in lieu of said original indictments. To which
motion the defendant entered the following objection: 'At
this time the defendant objects to the motion made by the
state's attorney to substitute the copies of indictments
Exhibits D, E, F, G, and H, for the reason that there is no
authority under our Constitution or statutory laws for the
substitution of any copy of an original indictment, and that
there is no authority under the common law for such a
proceeding; and we object on the further ground, for the
reason that the exhibits offered as copies are not certified
or proved to be copies of the original indictments returned
by the grand jury against the defendant, and are only shown
to be papers delivered by one of the attorneys for the
defendant to the clerk of this court on the request that he
desired them for the purpose of copying; that the exhibits
are copies of papers which are not identified in any way as
being copies of the original indictments, or taken from the
original indictments, or even taken from certified copies of
the original indictments, and there is nothing before the
court to identify them as copies of the original indictments,
if the court has the power to substitute copies of any
indictment; also, that the showing made by the prosecution is
not sufficient to sustain the motion that he makes to
substitute copies."'
The
reasons assigned by the learned circuit court for its refusal
to grant the state's application are thus stated in its
return or answer in this proceeding: "In this action it
appears that the grand jury for the county of Beadle in the
spring of 1905 returned several indictments into court
against the defendant, which indictments were filed, and
whereupon the defendant filed an affidavit of prejudice
against the presiding judge on the several indictments
returned; that he was by said judge required to plead; that
he demurred to the indictments, which demurrers were
overruled by the court, and the defendant entered to each of
the indictments a plea of not guilty; that the causes went
for trial to the next regular term of the circuit court for
that county; that prior to the next term, and after the
filing, the indictments were lost or stolen from the records,
and they cannot be found; and this is a motion on the part of
the state to allow the filing of copies of the indictments
and to restore the record. The defendant, appearing
personally and by counsel, objects to the filing of copies
for several reasons, among others that the grand jury which
found the indictments was not legally constituted; second,
that the papers offered to be filed by the state are not
copies or proven to be copies; third, that there is no
statute allowing the restoration of a lost indictment
in this state. These are the main objections, as the court
understands, made by the defendant to the filing of these
proposed copies. In regard to the first objection, that the
grand jury was not legally constituted, the court finds
absolutely no reason for this contention. In regard to the
objection that there is no statute under which these
proceedings could be had, while it is not necessary to decide
the question in this case, the court is of the opinion that,
after an indictment has become a record of the court and is
abstracted or lost, the court has the inherent power to
restore the record by a proven and certified copy, if such
can be obtained. The question in this case is as to the
nature of the so-called copies offered by the state in lieu
of the lost or abstracted indictments. The court has no power
to make an indictment. Granted that the court has the power
to order a copy substituted, should it not be such a copy and
of such a character that it would preclude any reasonable
doubt as to its being a true copy of the criminal indictment?
In this case the papers presented are true carbon copies of
the body of two indictments entitled in this case. There are
no signatures of the officers or names of witnesses. Together
with these are presented full copies, or papers which on
their face are full copies, of indictments entitled herein.
The affidavits show that they were compared from copies of
indictments borrowed by the clerk of court from one of the
attorneys for the defendant. There is no affidavit that these
are true copies of the indictments lost or abstracted. There
are affidavits from the state's attorney and clerk of
court which state that they believe them to be true copies.
There is no affidavit of the person making the copy of which
these presented papers are copies as to their being true, and
the court is asked, from a search of the records and the
recollection of the clerk and state's attorney, and
perhaps his own recollection, to formulate, with the help of
these tendered copies, an indictment or indictments upon
which these causes should be tried. I do not believe the
court has power so to do. Whether these indictments were
interlined or not could not be ascertained. What were the
names of the witnesses would be a matter of proof, as would,
in fact, the matter of the contents of the indictments; and
in fact the court in this proceeding is asked to practically,
from whatever can be ascertained, make new indictments, and,
while it is to be regretted that criminal actions can be
disposed of in this manner, I do not believe the law would
justify the granting of this request, and the motion is
denied."
Every
court must have inherent power to protect and preserve its
own records; otherwise, it could not perform the functions
for which it is created. The indictments in question became
public records when filed with the clerk. Rev. Code Cr. Proc
§ 217. The government, the defendant, and every inhabitant of
the state was concerned in their preservation. When it was
suggested that they had been lost or stolen, it was the duty
of the court on its own motion, if its inherent power had not
been otherwise invoked, to have caused the return of the
original documents to their proper custodian, or, failing in
this, to have ascertained with reasonable certainty the
contents of each, and ordered the filing of copies
corresponding in every material respect with the originals.
Such we believe to be the power and duty of every court
existing by virtue of organic law, with respect to all its
records, whether civil or criminal, and that it cannot be
deprived of such power or excused from performing such duty
by any legislative enactment. It is enough, however, for the
purposes of this proceeding, to hold that such power and duty
existed independently of statutory authority, where, as in
this instance, the accused was furnished with certified
copies and entered his plea of not guilty before the
indictments were lost or stolen, and in so holding we have
the support of abundant authority. State v. Rivers,
58 Iowa, 102, 12 N.W. 117, 43 Am. Rep. 112; State v.
Stevisiger, 61 Iowa, 623, 16 N.W. 746; State v.
Gardner (Tenn.) 13 Lea, 134, 49 Am. Rep....