State v. Douglass
| Citation | 35 Idaho 140,208 P. 236 |
| Parties | STATE, Respondent, v. ED. W. DOUGLASS, Appellant |
| Decision Date | 23 February 1922 |
| Court | United States State Supreme Court of Idaho |
COURTS OF RECORD-INHERENT POWER TO CORRECT RECORDS-NOT LOST BY LAPSE OF TIME - LIMITED TO WHAT WAS ACTUALLY DONE - PLEA OF FORMER ACQUITTAL - MUST BE TRIED BY JURY UNLESS WAIVED - MISCONDUCT OF PROSECUTING ATTORNEY - WHEN REVERSIBLE ERROR.
1. Every court of record has the inherent power to correct its records so that such records will correctly show the orders and directions which were in fact made by the court, and this power is not lost by the lapse of time.
2. The power of a court to amend its record is limited to making such record correspond to the actual facts, but it cannot under the form of amending its records correct judicial errors or make of record an order or judgment not in fact given.
3. A plea of former acquittal presents an issue of fact that must be tried by a jury, unless such trial be waived.
4. Where a plea of former acquittal has been entered, it is error for the court to instruct the jury to find against the defendant on such plea.
5. Where the evidence relied upon for conviction by the state is of such character that the purity of the verdict might have been affected by the alleged misconduct of the prosecuting attorney, such verdict will be set aside.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.
Prosecution for the crime of burning hay. Defendant was convicted, and appeals. Reversed, with instructions for new trial.
Reversed and remanded, with instructions.
E. P Barnes, for Appellant.
The question as to whether a person on trial has been tried previously for the same offense is a question of fact to be determined partly by the record of the former proceeding and partly by evidence outside the record. (16 C. J. 426; Sweeney v. State, 16 Ga. 467, 468; Goode v. State 70 Ga. 752, 754.)
The authority of a court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken, and cannot supply omitted action by the court. (Liddell v Landau, 87 Ark. 438, 112 S.W. 1085; Tucker v. Hawkins, 72 Ark. 2, 77 S.W. 902; 15 C. J. 973.)
The court has no authority to amend its minutes after the expiration of the term.
Flagrant misconduct of the prosecuting attorney in the trial of a criminal case demands that a verdict so procured be set aside and a new trial awarded. (State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; State v. Givens, 28 Idaho 253, 152 P. 1054; People v. Valliere, 127 Cal. 65, 59 P. 295; State v. Rodriquez, 31 Nev. 342, 102 P. 863; Waston v. State, 7 Okla. Cr. 590, 124 P. 1101; Flege v. State, 93 Neb. 610, 142 N.W. 276, 47 L. R. A., N. S., 1106; State v. Harness, 10 Idaho 18, 76 P. 788; State v. Moon, 167 Iowa 26, 148 N.W. 1001, and cases cited; Leo v. State, 63 Neb. 723, 89 N.W. 303, and cases cited; Yeldell v. State, 100 Ala. 26, 46 Am. St. 23, 14 So. 570; People v. Mitchell, 62 Cal. 411; State v. Carpenter, 51 Ohio St. 83, 46 Am. St. 556, 37 N.E. 261; Furbush v. Maryland Cas. Co., 131 Mich. 234, 100 Am. St. 609, 91 N.W. 135; Haynes, New Trial & Appeal, sec. 50, pp. 244-249, incl.; also p. 254.)
A new trial will be granted when the jury has been guilty of any misconduct by which a fair and due consideration of the case has been prevented. (Sec. 9017, subds. 1 and 3; State v. Baker, 28 Idaho 727, 156 P. 103; Palmer v. Utah etc. Ry. Co., 2 Idaho 315, 13 P. 425, and cases cited; State v. Irwin, supra; State v. Tilden, 27 Idaho 262, 147 P. 1056; Burke v. McDonald, 3 Idaho 296, 29 P. 98; People v. Tipton, 73 Cal. 405, 14 P. 894; Vollrath v. Crow, 9 Wash. 374, 37 P. 474; Veneman v. McCurtain, 33 Neb. 643, 50 N.W. 955; Haynes, New Trial & Appeal, sec. 68, pp. 329, 330, and cases cited; also sec. 159; Spelling, New Trial & Appellate Practice, sec. 80, pp. 143, 144.)
Prejudicial communications are presumed from improper association without more appearing. (Spelling, New Trial & Appellate Practice, sec. 167, and cases cited; Tarkington v. State, 72 Miss. 731, 17 So. 768.)
A plea of former acquittal raises an issue of fact that must be tried by a jury.
There is no authority under the constitution, statutes or decisions of this state for a trial court to take an issue of fact away from the jury in a criminal case by a peremptory instruction. (C. S., secs. 8941, 8963, subd. 6; Territory v. Nelson, 2 Idaho 614, 23 P. 537; State v. Wright, 12 Idaho 212, 85 P. 493; State v. Downing, 23 Idaho 540, 130 P. 461; State v. Peck, 14 Idaho 712, 95 P. 515.)
Roy L. Black, Attorney General, Jas. L. Boone, Assistant, and Elbert S. Delana, Pros. Atty., for Respondent.
A court has authority to amend its records by a nunc pro tunc order to make them speak the truth. (Sec. 6477, C. S.; State v. Winter, 24 Idaho 749, 135 P. 739; Aetna Fire Ins. Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; 24 Am. & Eng. Ency. of Law, 2d ed., 177; Lynah v. United States, 106 F. 121; Kaufman v. Shain, 111 Cal. 16, 52 Am. St. 139, 43 P. 393; Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745; People v. Ward, 141 Cal. 628, 75 P. 306; Coop v. Northcutt, 54 Mo. 128; In re Tolman, 101 Me. 559, 64 A. 952; Walch v. Colby, 153 Mich. 602, 126 Am. St. 546, 117 N.W. 207; Bolden v. Jennings, 92 Ark. 299, 122 S.W. 639; Clark v. Bank of Hennesy, 14 Okla. 572, 2 Ann. Cas. 219, 79 P. 217; 7 R. C. L. 1020; 15 C. J. 975; Karrick v. Wetmore, 210 Mass. 578, 97 N.E. 92; White v. East Side Mill Co., 84 Ore. 224, 161 P. 969; Currey v. Butte Electric Ry. Co. (Mont.), 199 P. 245.)
Where a plea of former acquittal has been made, based on the dismissal of an information upon a motion to quash, the court may direct the jury to find the issue raised by the plea in favor of the state.
Improper conduct of prosecuting attorney is usually cured by immediate verbal direction on the part of the court to the jury to disregard the same. (16 C. J. 917, sec. 2271, note 67.)
LEE, J. Rice, C. J., concurs, Dunn, J., concurs in the result. Budge, J., did not sit at the hearing and took no part in the decision. McCarthy, J., took no part.
On November 4, 1917, a criminal complaint was filed before a magistrate of Ada county, charging appellant Ed. W. Douglass under C. S., sec. 8556, with having feloniously set fire to and burned a stack of hay, the property of one Henry Blucher, and he was held to answer the charge in the district court of Ada county. On November 30th thereafter the prosecuting attorney of said county filed an information charging appellant with having committed said offense on the fourth day of November. Appellant moved to set aside the information, which motion was sustained, and the clerk made an entry upon the minutes of the court January 9, 1918, to the effect that said information had been set aside.
On January 29th following, a second information was filed, wherein the offense was charged as having been committed on the fourth day of January, 1918, and to this information the appellant on the sixteenth day of March pleaded orally and in writing that he had already been acquitted of the offense charged, by the judgment of the court rendered on the ninth day of January, 1918, and further, that he was not guilty of the offense charged.
The cause was tried on April 2, 1918, and resulted in a disagreement. In September following the case was again tried, and a verdict of guilty returned. Thereafter a motion in arrest of judgment and a motion for a new trial having been overruled, from said verdict and judgment and the order denying a new trial this appeal is taken.
Appellant makes numerous assignments of error, but it will not be necessary to consider all of said assignments.
Appellant contends that the court is concluded by the entry made by the clerk as of January 9, 1918, wherein it is recited that: "In this cause the motion to set aside the information heretofore filed against the defendant having been heretofore argued and taken under advisement, the court at this time rendered its decision, to wit: The motion to set aside the information be and the same is hereby sustained."
C. S sec. 8865, provides that if a motion to set aside the information is granted, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be...
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