State v. Watkins

• Decision Date: 31 January 1900
• Citation: 7 Idaho 35,59 P. 1106
• Parties: STATE v. WATKINS
• Court: Idaho Supreme Court

59 P. 1106

7 Idaho 35

STATE v. WATKINS

Supreme Court of Idaho

January 31, 1900

CRIMINAL LAW-AMENDING RECORD AFTER JUDGMENT.-Where the record of the trial of a defendant for a felony shows the presence of the defendant at arraignment, during the trial, and at the pronouncing of sentence, but, through inadvertence of the clerk, fails to show defendant's presence at the receiving of the verdict, the correction of the record after judgment and appeal, so as to make the same accord with the fact, by the district court, held, not error.

INSTRUCTIONS-PREJUDICIAL ERROR-PRESUMPTIONS.-Where none of the evidence upon the trial appears in the record, an instruction that might, in certain conditions of the evidence, be considered erroneous, this court will not presume the evidence in the case to have been of such a character as to make the giving of such instruction prejudicial error.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed.

N. M Ruick, for Appellant.

The instruction referred to in the second specification of error and excepted to by the defendant, is as follows: "The rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if, taking the testimony altogether, the jury are satisfied beyond a reasonable doubt that the defendant is guilty." We think the giving of the foregoing instruction was error. It is taken bodily from Sackett's Instructions to Juries section 34, page 647, and four cases are there cited in support of it. Upon examination of these cases it will be found that the two first cited, viz.; Houser v State, 58 Ga. 78, and Jarrell v. State, 58 Ind. 293, do not sustain the principle embodied in this instruction, while State v. Hayden, 45 Iowa 11, and Bressler v. People, 117 Ill. 422, 8 N.E. 62, do sustain the instruction given in this case. We maintain, however, that this instruction is both wrong in principle and opposed to the weight of authority. The supreme court of California holds, directly, the "each independent fact and circumstance necessary to constitute the chain must be proved beyond a reasonable doubt." (People v. Phipps, 39 Cal. 326, 333; People v. Ah Chung, 54 Cal. 398, 402.) Both at common law and by statute a defendant charged with a felony must be present at the trial and at the rendition of the verdict. Whenever the presence of the defendant is required, the record must show it. Unless the record so shows, the judgment will be set aside and a new trial ordered. Presence of defendant necessary at the trial. (Idaho Rev. Stats., sec. 7782; Bishop's Criminal Procedure, 3d ed., sec. 273, and cases cited in note; Wharton's Criminal Law, sec. 1353.) General rule is that defendant's presence is indispensable. (Warren v. State, 68 Am. Dec. 222, note "B"; Bishop's Criminal Procedure, 3d ed., 265, 273.) Presence of defendant necessary at the rendition of the verdict. (Idaho Rev. Stats., sec. 7916; French v. State, 85 Wis. 400, 39 Am. St. Rep. 855, 55 N.W. 566, 21 L. R. A. 402; Bishop's Criminal Procedure, 3d ed., sec. 273; Warren v. State (1857), 19 Ark. 214, 68 Am. Dec. 220, and note.) It is still universally required that he (the prisoner) must be personally present when the verdict is rendered. (State v. Outs, 30 La. Ann. 1156; Slocovitch v. State, 46 Ala. 227.) Necessity of personal presence being shown in the record, the presence of the prisoner is essential, and where the law requires it the record must show it. (1 Bishop's Criminal Procedure, 3d ed., secs. 1347, 1353, 1359; French v. State, 85 Wis. 400, 408, 39 Am. St. Rep. 855, 55 N.W. 566, 21 L. R. A. 402; Stubbs v. State, 49 Miss. 716, 722; Wharton's Criminal Law, sec. 2999; Younger v. State, 2 W.Va. 579, 98 Am. Dec. 791, 792, 798; State v. Connors, 20 W.Va. 6; Warren v. State, 68 Am. Dec. 227, note; State v. Barnes, 59 Mo. 154, and cases cited; Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136.) Presumptions are not to be indulged. (Dunn v. Commonwealth, 6 Pa. 387, 388, 389; Eliza v. State, 39 Ala. 693; Dougherty v. Commonwealth, 69 Pa. 286, 294; Stubbs v. State, 49 Miss. 716; Dyson v. State, 26 Miss. 362.) The record cannot be contradicted, altered or amended so as to show the presence of the defendant. (Le Roy v. Territory, 3 Okla. 596, 41 P. 612; Shelp v. United States, 81 F. 694, 26 C. C. A. (9th Cir.) 570, 576; Barker v. State, 54 Neb. 53, 74 N.W. 427.)

Samuel H. Hays, Attorney General, for the State.

The rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt, in order to warrant a conviction does not require that the jury should be satisfied beyond reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient, if taking the testimony together, the jury is satisfied beyond a reasonable doubt that the defendant is guilty. It is well settled that error will not be presumed, but must be affirmatively shown. (State v. Preston, 4 Idaho 215, 38 P. 694.) The presumption is that the instructions were given by the court on its own motion. (State v. Hurst, 4 Idaho 345, 39 P. 554.) The instruction in question, in connection with the other instructions in the case, is not erroneous. (19 Am. & Eng. Ency. of Law, 1079; Weaver v. People, 132 Ill. 536 (542), 24 N.E. 571; Morgan v. State, 51 Neb. 672, 71 N.W. 788 (795); State v. Roberts, 15 Ore. 187, 13 P. 896; Hauk v. State, 148 Ind. 238 (254), 46 N.E. 127, 47 N.E. 465; State v. Crane, 110 N.C. 536, 15 S.E. 231; Murphy v. State, 108 Ala. 10, 18 So. 557.) A record in a criminal case may be amended nunc pro tunc, after the term at which the judgment was entered, where the amendment is proposed for the purpose of correcting a clerical error, so that the record may conform to the true facts. In support of this contention we cite: Hoffman v. State, 88 Wis. 166, 59 N.W. 588; In re Wright, 134 U.S. 136, 10 S.Ct. 487; McNamara v. State, 60 Ark. 400, 30 S.W. 762; State v. Perry, 51 La. Ann. 1074, 25 So. 944; Smith v. State, 71 Ind. 250; May v. People, 92 Ill. 343; Holman v. State, 79 Ga. 155; People v. McNulty, 93 Cal. 444, 26 P. 597, 29 P. 61.

HUSTON, C. J. Quarles, J., and Sullivan, J., concur.

OPINION

HUSTON, C. J.

This case comes to this court upon two appeals arising under the following circumstances: The defendant was convicted of murder in the second degree, and sentenced to twenty years' confinement in the state penitentiary. From this judgment and sentence he appealed to this court. Pending this appeal a motion was made in the district court to amend the record in this particular. The record failed to show the presence of the defendant when the verdict of the jury was received. The motion was allowed by the district court, and the record was amended to accord with the fact. From this action of the district court an appeal was taken, and it is to this appeal we will first give consideration. Section 7916 of the Revised Statutes of Idaho is as follows: "If indicted for a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence." It is clear from this provision of the statute that in cases of felony the defendant must be present at the rendition of the verdict, and we think the record should show this fact. The question we are called upon first to consider is, Was the action of the district court in ordering a correction of the record erroneous? Counsel for appellant argues ably and ingeniously against the correctness of this action of the district court. But a careful examination of the authorities cited satisfies us that the consensus of the more recent decisions is against this contention. In Re Wight 134 U.S. 136, 10 S.Ct. 487, 33 L.Ed. 865, this question is fully considered, and the right of the trial court to correct its records so as to make the same conformable to the fact is directly upheld. But counsel for the appellant contends that the authorities cited by the court in Re Wight do not sustain the decision reached by the court. We are not in accord with this view. The facts in Re Wight were that, after a conviction had in the district court, the judge of said court made an order remitting the case to the circuit court of the United States, and the said court remanded the same to the district court. In the meantime the district court had entered judgment and sentence against the defendant. Thereafter the defendant brought habeas corpus upon the ground that the district court had no jurisdiction to pronounce sentence, for the reason that it appeared from the record that at the time said judgment was entered and sentence pronounced said cause was not pending in said district court, but that the same had been by order of the court remitted to the circuit court, and it did not appear from the record that the same had ever been remanded by the latter court to the district court. The circuit court thereupon made an order nunc pro tunc remanding said cause to the district court. While it was true that not all the cases cited by the court in Re Wight rest upon the same state of facts, yet the principle involved is the same in all, to wit, the power of the trial court to correct its record after the expiration of the term to make the same accord with the fact. One of the authorities cited by the court in Re Wight, supra, is that of Bilansky v. State, 3 Minn. 427 (Gil. 313), and, as the court in that case expressed what we consider to be the correct rule, we copy somewhat at length therefrom. The court in that case says: "No objection...