Weatherman v. Commonwealth.1

• Decision Date: 20 June 1895
• Citation: 22 S.E. 349,91 Va. 798
• Parties: WEATHERMAN. v. COMMONWEALTH.1
• Court: Virginia Supreme Court

22 S.E. 349

91 Va. 798

WEATHERMAN.

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

June 20, 1895.

Record of Proceeding—Signature by Judge-Criminal Procedure.

1. Code 1887, § 3114, requires that the proceedings of court for each day shall be drawn up at large, entered in a book, and read in open court, except on the last day of the term, when they shall be drawn up and read the same day; and that after being corrected, the record shall be signed by the presiding judge. Held, that where the proceedings of the last day of the term are signed by the judge, his failure to sign the orders on the day a verdict of guilty was rendered will not avoid the verdict and judgment entered thereon.

2. A judge may sign a day's proceedings in the order book at the next term nunc pro tunc.

3. The signature by the judge of any day's proceedings in the order book need not be in the presence of one against whom a verdict of guilty was rendered on such day.

On rehearing. For opinion on appeal, see 19 S. E. 778.

W. D. Tompkins, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

RIELY, J. This case is before us upon a rehearing, which was granted upon an assignment of error that was not passed upon in the opinion of the court delivered at the June term, 1894. We concur in the opinion of the court, delivered by Judge Lacy, upon the former hearing, which affirmed the judgment of the circuit court; and it is only necessary, therefore, to pass upon the single error assigned in the petition for a rehearing.

It appears that the judge of the circuit court omitted to sign during the term the orders of the court of the day on which the jury returned their verdict of guilty against the accused, and this is the ground of error on which the petition for the rehearing is based. It appears from the record that all the steps taken and proceedings had in the trial of the accused on that day, as well as on the other days during which the trial progressed, are wholly regular and in due form, and the only irregularity is the omission of the judge to affix his signature to the record of that day's proceedings. Is this an error for which the judgment of the circuit court should be reversed? Section 3114 of the Code is as follows: "The proceedings of every court shall be entered in a book, and read in open court by the clerk thereof. The proceedings of each day shall be drawn up at large, and read during that term, except those of the last day of a term, which shall be drawn up and read the same day. After being corrected, where it is necessary, the record shall be signed by the presiding judge." The statute does not in express terms prescribe that the orders of each day of a term of the court shall be separately signed, but that is the reasonable inference to be deduced from its language, and this is the general practice of the courts. The orders and proceedings of each day in a case are entered by the clerk in the order book under the direction of the court. These entries constitute the evidence of such of the proceedings as have taken place, and such of the orders as have been made by the court during the progress of the trial, as it is necessary should appear in the record, and the signature of the judge to the record authenticates them and establishes their genuineness. This, we apprehend, is likewise the effect upon all of the proceedings and orders of the term of the signature of the judge to the proceedings of the last day thereof. All entries made in the order book during the term which precede the signature of the judge are thereby authenticated. And as the proceedings on the subsequent days, including the last day, of the term at which the accused in the case at bar was convicted were duly signed, the omission of the judge to sign separately the record of the proceedings of the day on which the verdict of the jury was returned to the court and...