Waterman v. State

• Decision Date: 10 October 1888
• Docket Number: 14,596
• Parties: Waterman v. The State
• Court: Indiana Supreme Court

18 N.E. 63

116 Ind. 51

Waterman v. The State

No. 14,596

Supreme Court of Indiana

October 10, 1888

From the Warren Circuit Court.

Judgment affirmed, with costs.

C. V McAdams, for appellant.

L. T Michener, Attorney General, W. B. Reed, Prosecuting Attorney and E. Stansbury, for the State.

OPINION

Mitchell, J.

Waterman was tried and convicted upon an indictment which charged him with the crime of embezzlement. At the proper time, he pleaded in abatement that the record did not show that an indictment had been returned into court against him. After the plea was filed the record was amended so as to show that an indictment had been duly returned, and, upon the evidence of the record so amended, the court found the issue raised upon the plea against the defendant.

It is now contended that the court erred in admitting the amended record in evidence to defeat the plea, the argument being that the issue should have been determined upon the facts as they existed at the time the plea was filed. There is no merit in the point. It was not only competent for the court, but it was its duty, whenever the fact was brought to its attention that the clerk had omitted to make the proper entry showing the return of the indictment, to cause the same to be done by an entry nunc pro tunc, so that the record would conform to the facts as they actually occurred and existed. State v. Pearce, 14 Ind. 426; Long v. State, 56 Ind. 133; Chamberlain v. City of Evansville, 77 Ind. 542.

When the record was corrected, the correction related back to the time of the returning of the indictment. It did not bring any new facts into existence, but it became proper evidence of the facts as they existed before the filing of the plea.

It is insisted next, that the court erred in overruling the appellant's motion for a new trial on account of the alleged misconduct of the jury in permitting the presence of the bailiff in the jury-room during their deliberations.

All that appears in the record upon that subject is the affidavit of appellant's counsel, who deposes, in substance, that he was present in court during the deliberations of the jury, which continued for two hours; that he saw the bailiff during that time frequently go to the jury-room, when there was no signal for him, and enter and remain in the room from ten to fifteen minutes at a time while the jury were deliberating, and that the bailiff told the affiant after the verdict was returned that he was present and knew how the jury voted on several ballots.

The conduct of the bailiff was reprehensible in the highest degree, and we can not but believe that if appellant's counsel had promptly reported the facts to the court at the time he observed the misconduct of the bailiff, in going unbidden into the jury-room, the matter would have been set right at once.

Ordinarily, the unexplained presence of the bailiff in the jury-room during the deliberations of the jury is such misconduct as vitiates their verdict. Rickard v. State, 74 Ind. 275; McClary v. State, 75 Ind. 260; Doles v. State, 97 Ind. 555.

In the present case, however, the affidavit of the appellant's counsel discloses the fact that counsel saw the bailiff go into the jury-room without any invitation or signal from within, and that this was repeated again and again in his presence, without protest or objection, although the counsel was present in court at the time. In whatever light counsel may have regarded the conduct of the bailiff after an adverse verdict was returned, it does not seem to...