State v. Cannon, 2

• Decision Date: 19 September 1956
• Docket Number: No. 2,2
• Citation: 94 S.E.2d 339,244 N.C. 399
• Parties: STATE, v. David CANNON.
• Court: North Carolina Supreme Court

Page 339

94 S.E.2d 339

244 N.C. 399

STATE, v. David CANNON.

No. 2

Supreme Court of North Carolina.

Sept. 19, 1956

Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. Claude L. Love, for the State.

R. Brookes Peters, Gen. Counsel, and Parks H. Icenhour, Raleigh, for the State Highway and Public Works Commission.

Jones, Reed & Griffin, Kinston, and C. Banks Finger, Franklin, for defendant.

DENNY, Justice.

The defendant raises these questions on this appeal:

1. Did Judge Pless, on the motion of the State made at the April Term 1956 of the Superior Court of Macon County, have the power to correct the minutes of the August Term 1951 of said court?

2. Was oral evidence competent in support of the motion of the State to correct said minutes?

3. Are the findings of fact incorporated in the judgment entered by Judge Pless supported by the evidence offered in support of the above motion?

4. Is the judgment of his Honor, Bickett, J., entered on the hearing in the habeas corpus proceeding in the cause, decreeing that the judgment of his Honor, Rudisill, J., entered in said cause at the December Term 1951 of the Macon County Superior Court, was void, binding upon the State?

5. Is the judgment of his Honor, Judge Pless, entered at the April Term 1956 of the Macon County Superior Court in this cause, valid?

6. Is the defendant, on the record in this appeal, entitled to be discharged from custody?

We will consider these questions in the order stated.

1. It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty. 14 Am.Jur., Courts, sections 141, 142, and 143, page 351, et seq.; 21 C.J.S., Courts, § 227 b, p} 423; McIntosh, N. C. Practice and Procedure, Second Edition, Volume 2, section 1711, page 161; Galloway v. McKeithen, 27 N.C. 12, 42 Am.Dec. 153; Phillipse v. Higdon, 44 N.C. 380; Mayo v. Whitson, 47 N.C. 231; Foster v. Woodfin, 65 N.C. 29; Walton v. Pearson, 85 N.C. 34; Brooks v. Stephens, 100 N.C. 297, 6 S.E. 81; Ricaud v. Alderman & Flanner, 132 N.C. 62, 43 S.E. 543; Norfolk Southern R. Co. v. Reid, 187 N. C. 320, 121 S.E. 534; Oliver v. Board of Com'rs of Johnston County, 194 N.C. 380, 139 S.E. 767; State v. Tola, 222 N.C. 406, 23 S.E.2d 321; State v. Maynor, 226 N.C. 645, 39 S.E.2d 833; Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745.

This Court has quoted with approval many times the statement contained in the opinion of Ruffin, J. in the case of Walton v. Pearson, supra, which is as follows: 'It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and evey instance; and this it must do upon the application of any person interested, and without regard to its effect upon the rights of parties, or of third persons; and neither is it open to any other tribunal to call in question the propriety of its action or the verity of its records, as made. This power of a court to amend its records has been too often recognized by this Court, and its exercise commended, to require the citation of authorities--other than a few of the leading cases on the subject. See Phillipse v. Higdon, 44 N.C. 380; Foster v. Woodfin, 65 N.C. 29; Mayo v. Whitson, 47 N.C. 231; Kirkland v. Mangum, 50 N.C. 313.'

2. The power to amend or supply omissions in minutes of a court of record should be exercised with care and caution. 'The proof of the defect should be clear and satisfactory, * * * but in this state it is left to the court to determine by any satisfactory evidence that the mistake was made, and the action of the court is not subject to review.' McIntosh, N.C. Practice and Procedure, Second Edition, Volume 2, section 1711, page 161, et seq.; 14 Am.Jur., Courts, section 145, page 353; Mayo v. Whitson, supra; Beam v. Bridgers, 111 N.C. 269, 16 S.E. 391; Creed v. Marshall, 160 N.C. 394, 76 S.E. 270; Holton v. Lee, 173 N.C. 105, 91 S.E. 602; Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794.

Parol evidence is competent in this jurisdiction in support of a motion to correct the minutes or to supply an omission in the minutes of a court of record. However, such evidence is not admissible to contradict a court record when such record is collaterally attacked. Norfolk Southern R. Co. v. Reid, supra; State v. Tola, supra. Furthermore, in the exercise of power to amend the record of a court, the court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error or incorporate anything in the minutes except a recital of what actually occurred. 30 Am. Jur., Judgments, section 94, page 866.

3. The findings of fact incorporated in the judgment entered by Pless, J. at the April Term 1956 of the Superior Court of Macon County, are supported by clear and satisfactory evidence. In fact, the defendant has not at any time denied that he pleaded to the bill of indictment; that a jury was duly impaneled, or that it returned a verdict of guilty and that the verdict was accepted by the court. He declined to offer any evidence in the hearing below, although he was given the opportunity to do so. He relies solely upon his right to a discharge on the fact that the minutes of the court, prior to their amendment, were not complete in that they did not contain a recital of the plea, the impaneling of the jury, and the verdict, which fact was found by Bickett, J. and upon which he held the judgment was void. Judge Bickett, however, did not find that no plea was entered; that a jury was not impaneled, or that the jury did not return a verdict of guilty.

4. Our statute, G.S. § 17-4, subsection 2, provides that an application to prosecute the writ in a habeas corpus proceeding shall be denied, 'Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.'

It is said in 39 C.J.S., Habeas Corpus, § 15, p. 448, et seq.: 'Where the restraint is under legal process, mere errors and irregularities which do not render the proceeding void are not ground for relief by habeas corpus, because in such cases the restraint is not illegal, but for incurable, radical and fatal defects plainly and indisputably manifest of record, relief should be granted even on habeas corpus', citing among numerous authorities, State v. Edwards, 192 N.C. 321, 135 S.E. 37, 38.

In the last cited case it is said: 'It is well settled that, in habeas corpus proceedings, the court is not permitted to act as one of errors and appeals, but the right to afford relief, on such hearings, arises only when the petitioner is held unlawfully, or on a sentence manifestly entered by the court without power to impose it. The judgment must be void as distinguished from erroneous. * * * Speaking to the question in United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631, the court said: 'Under a writ of habeas corpus, the inquiry is addressed, not to errors, but to the question whether the proceedings, and judgment rendered therein, are, for any reason, nullities; and, unless it is affirmatively shown that the judgment or sentence under which the prisoner is confined is void, he is not entitled to his discharge.' Again, in People v. Liscomb, 60 N.Y. 559, Allen, J., delivering the principal opinion, said: 'If there was no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void. * * * In other words, upon the writ of habeas corpus, the court could not go behind the judgment, but upon the whole record, the question was whether the judgment was warranted by law, and within the jurisdiction of the court."

It is also said in Ex parte McCown, ...