State v. Mason
Decision Date | 20 December 1930 |
Citation | 33 S.W.2d 895,326 Mo. 973 |
Parties | The State v. Francis M. Mason, Appellant |
Court | Missouri Supreme Court |
Appeal from Washington Circuit Court; Hon. E. M. Dearing Judge.
Reversed and defendant discharged.
Richeson & Richeson for appellant.
(1) A person cannot be twice put in jeopardy for the same offense.Sec. 23, Art. 2, Mo. Constitution;Sec. 3696, R. S. 1919.(2) Where a jury is impaneled and sworn, the information being sufficient and the court having jurisdiction, the jeopardy of the person accused begins.State v. Snyder,98 Mo 555;State v. Wiseback,139 Mo. 214;State v Manning,168 Mo. 418.(3)The court cannot amend its record at a subsequent term by parol testimony, or matters outside the record.(a)The court cannot amend its record at a subsequent term unless there be some note or memorandum in the record to show the fact from which the amendment could be made.State v. Gartrell,171 Mo. 489;State v. Jeffors,64 Mo. 376.(b) A fact cannot be incorporated into the record upon what the judge or some other person remembers, or upon ex parte affidavits or upon testimony taken after the term has expired.16 C. J. 1324, note 61;State v. Gastrell,171 Mo. 489.(c) Where the court omitted to make an order which it might or ought to have made, it cannot be made at a subsequent term by a nunc pro tunc entry.Gibson v. Chouteau Heirs,45 Mo. 171;Turner v. Christy,50 Mo. 145;Priest v. McMaster,52 Mo. 60;Dunn v. Raley,58 Mo. 134;Fletcher v. Combs,58 Mo. 430;State ex rel. v. Grimm,61 Mo. 170;Woolridge v. Quinn,70 Mo. 371;Belkins v. Rhodes,76 Mo. 651;Ross v. Railroad,141 Mo. 395.(d) In the exercise of this power (to amend the record) the action of the court must be based on the judge's minutes, the clerk's entries, or some papers on file in the case, and not upon the judge's recollection of what took place at the trial or upon outside evidence.Fetters v. Baird,72 Mo. 389;Ry. Co. v. Horschlag,144 Mo. 253;Young v. Young,165 Mo. 624;Akin v. Buckner,203 S.W. 242;Burton v. Burton,232 S.W. 476;State v. Jeffors,64 Mo. 376;Osagera v. Schaff,240 S.W. 128;Reed v. Cope,213 Mo. 577;State v. Libby,203 Mo. 596;Ross v. Railroad Co.,141 Mo. 390;Bank v. Allen, 68 Mo. 474.
Stratton Shartel, Attorney-General, for respondent; Otis Patterson of counsel.
(1) There seems to have been no justification in fact for the plea of former jeopardy excepting that the clerk of the court had made a clerical error in writing up a judgment of dismissal in a former case in which the name of Francis M. Mason appeared as the name of the defendant.The minutes of the court as well as certain pencil memoranda made officially by the deputy clerk as to the case at the time did not justify the recital in the judgment that the jury had been sworn to try the case before the nolle prosequi was entered.The minutes of the court and the pencil memoranda showed that the jury had been sworn and qualified and that showing corresponds with the facts.The defendant's plea of former jeopardy was without foundation in fact and was simply an effort to take undue advantage of an untrue and erroneous recital in a former judgment of dismissal.(2) It is true that the judge of the court has no right to order a correction of a record of his court of a former term of court, based only upon his own recollection, even though his recollection be absolutely accurate and correct, and the court did not do that in this case.It is true that he expressed his recollection very positively and very definitely to the parties concerned, when the question was brought up before him by the defendant's plea of former jeopardy; but he did not allow the motion for the correction by nunc pro tunc order upon his recollection.The minutes of the court and the pencil memoranda of the deputy clerk relative to the case showed very plainly that an error had by some means crept into the record of the judgment of dismissal whereby it was erroneously recited that the jury had been sworn to try the case when as a matter of fact the jury had not been sworn to try the case.The court simply permitted the error that was obvious and manifest from the minutes of the court in the case, to be corrected as the court had the right to do and as it was the duty of the court to do so as to make the record speak the truth.State v. Collins,225 Mo. 633;State v. Gordon,196 Mo. 196;State v. Eaton,191 Mo. 154.(3)The appellant's plea of former jeopardy failed in another very important element besides being unfounded in fact.It failed for the reason that there was no evidence offered by the defendant to sustain this claim as to the identity of the parties and the identity of the charge in the two cases alleged.A plea of former jeopardy is unavailing without record proof.The facts must be alleged and proved as alleged in order to sustain such a plea.State v. Broyles,295 S.W. 550;State v. Ross,279 S.W. 411;State v. Rozell,279 S.W. 705.(4)The court may always at subsequent terms set right mere forms in its judgments or correct misprisions of its clerks or mere clerical errors so as to conform the record to the truth, the record in the case showing the facts which justify the entry.State ex rel. v. Primm,61 Mo. 170;State v. Gartrell, 171 Mo. 504.
Defendant was tried in the Circuit Court of Washington County for the crime of committing an abortion upon one Opal F. Province.He was found guilty and his punishment was assessed by the jury at imprisonment in the state penitentiary for three years.From the judgment entered on such verdict, he has appealed.
The first question for determination is the correctness of the action of the trial court in overruling defendant's plea of former jeopardy.The information under which defendant was convicted was filed July 20, 1928.The offense was charged to have been committed in January, 1927.In support of his said plea, defendant offered in evidence an information filed July 27, 1927, which in language practically identical with the information in the case at bar, charged that on the day of January, 1927, Francis M. Mason committed the crime of abortion upon Opal F. Province.It was further shown that defendant was tried under said information at the November Term, 1927, and that the jury failed to agree upon a verdict and was thereupon discharged.
Thereafter and at the March Term, 1928, the following record entry appears:
The following entry from the minutes of the March Term, 1928, at page 131, was then offered by defendant, to-wit:
"State of Missouri,
Abortion.
Francis M. Mason.
"Jury Selected.
Sworn & Qualified.
"Then Prosecuting Attorney enters a Nolle Pros."
Defendant also offered files and records showing other proceedings, which we deem it unnecessary to set out here.It suffices to say that none of them tends to show that the jury was not sworn to try the issues at the March Term, 1928.The State then offered oral testimony, over the objection and exception of defendant, tending to show that, upon defendant's second trial at the March Term, 1928, the jury was not sworn to try the issues.The trial judge stated his own recollection to that effect.No record, minutes, memorandum of the trial judge, file, paper or other documentary evidence other than those put in evidence by the defendant, was offered by the State.The prosecuting attorney thereupon filed the following motion:
This motion was sustained and the court made and entered the following order:
Thereupon the court overruled defendant's plea of former jeopardy...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 7-day Trial
-
State v. Green
...trial court. State v. Cochran, 332 Mo. 742, 60 S.W.2d 1. (2) Motions to vacate judgment comes too late after close of term. State v. Mason, 326 Mo. 978, 33 S.W.2d 895; Jackson v. U.S., 131 F.2d 606; Hood U.S., 152 F.2d 431; State v. Kellar, 332 Mo. 62, 55 S.W.2d 969; State v. Reynolds, 355 ......
- State v. Hardy
-
State v. Summerland
...of this observation, see State v. Sykes, 400 S.W.2d 57 (Mo.1966); State v. Fleshman, 399 S.W.2d 56 (Mo.1966) and State v. Mason, 326 Mo. 973, 33 S.W.2d 895 (1930). This court is bound by the approved record on appeal of which that judgment is a part. State v. Morris, 523 S.W.2d 329 (Mo.App.......