State v. Clark
| Decision Date | 31 July 1853 |
| Citation | 18 Mo. 432 |
| Parties | THE STATE Appellant, v. CLARK, Respondent. |
| Court | Missouri Supreme Court |
1. There is no doubt of the power of a court to make nunc pro tunc entries on the record in furtherance of justice.
2. The failure of a clerk to enter upon an indictment the day of its return into court, does not entitle the defendant to his discharge.
Appeal from Dent Circuit Court.
Gardenhire, (attorney general,) for the state.
I. A defendant cannot be discharged for any failure of the clerk in making entries, after the filing of an indictment.
II. The Circuit Court had power to order entries of proceedings had at a previous term to be made nunc pro tunc. (Hyde v. Curling, 10 Mo. 359.)
The defendant was indicted for gaming by the grand jury, at the September term of the Circuit Court for Dent county, in the year 1852. At the April term of said court, in the year 1853, the defendant appeared in court, and moved the court to discharge him from his recognizance in this case, for the following reasons: “1st, because there is no indictment in this cause filed in the clerk's office in this court by indorsement of the clerk on said indictment; 2nd, because there is no indictment in this cause, and because the proceedings are otherwise irregular and defective.”
Upon the hearing of the motion, the indictment was shown with the following indorsements: The clerk had not marked the time of filing the same on the indictment, but had omitted to do so.
The circuit attorney then, in the presence of the court, made up the records of the court for the last term, by entering on the records the formal entry of the commencement of the term, in September, 1852; the return of the venire facias for a grand jury by the sheriff--the swearing and impaneling the grand jury, of which Ransom B. Mathews, was, by the court, made foreman, and the same were charged by the court, and retired to consider of their indictments; and on Tuesday, the second day of the term, the following proceedings were had: “The grand jury returned into court the following true bills of indictment.” Then follows a copy of the indictment in this case, which the clerk spread in full upon the records of the court. The court sustained the defendant's motion and discharged him. The circuit attorney excepted, and brings the case here by appeal.
1. This record is so badly made out, that it is almost out of our power to find what was done, or what was the real situation of the record at the time the motion was made to discharge the defendant. We see that he had been recognized to appear at court at the April term, 1853, to answer to the state upon an indictment for gaming. We see that the clerk had omitted to mark or indorse upon the indictment the day the same was returned by the grand jury into court; and we also suppose, from what we can make out of the record sent up to this court, that the clerk had omitted to make the proper entries in the records of the meeting of the court at the September regular term, and had omitted to enter the swearing and charging the grand jury, and the return of that body into...
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...jury, as required by the statute of this State, to raise such an objection for the first time by a motion in arrest of judgment. [State v. Clark, 18 Mo. 432.] But State v. Burgess, 24 Mo. 381, Judge Leonard, while adhering to the rule announced in the Mertens and Clark cases, supra, said th......
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