Wright v. Commonwealth
| Decision Date | 12 January 1911 |
| Parties | WRIGHT v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. Criminal Law (§ 1092*)—Writ of Error —Record—Bill of Exceptions—Time for Filing.
Under a statutory provision that any bill of exceptions may be tendered to the judge and be signed by him, either during the term of court or within 30 days after the end of the term, either in term time or in vacation, whether another term of the said court has intervened or not, or at such other time as the parties, by consent entered of record, may agree upon, an order allowing a prisoner 60 days from the adjournment of court within which to file his bills of exceptions, but failing to show that the 60 days was agreed upon and entered of record by consent of parties, is insufficient to authorize the filing of the bills of exceptions more than 30 days after the end of the term.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2852; Dec. Dig. § 1092.*]
2. Criminal Law (§ 1092*)—Writ of Error —Record—Amendment or Correction.
An order allowing a prisoner 60 days from the adjournment of the term within which to file his bills of exceptions cannot be amended after the adjournment of the term to show that it was made by the consent of the parties entered of record; there being nothing in the record by which the amendment can be made.
[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1092.*]
3. Courts (§ 116*)—Records—Amendment-Power of Court.
During the term of a court at which a judicial act is done the record remains in the breast of the court, and may be altered or amended; but after the adjournment of the term amendments can only be made in cases in which there is something in the record by which they can be safely made, and not on the individual recollection of the judge, or on evidence aliunde.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 372; Dec. Dig. § 116.*]
Error to Circuit Court, Buckingham County. W. Dallas Wright was convicted of murder, and brings error. Affirmed.
Jno. L. Lee, A. E. Strode, and A. S. Hall, for plaintiff in error.
Samuel W. Williams, Atty. Gen., for the Commonwealth.
The first question to be disposed of is the motion of the commonwealth to have this writ of error dismissed as improvidently awarded, upon the ground that the bills of exceptions relied on were not signed and made parts of the record in the manner and within the time prescribed by the statute.
The final order which was entered on the 23d day of March, 1910, provides, in part, as follows: "And the prisoner having expressed a wish to apply for a writ of error, this sentence is suspended for 90 days from the adjournment of this court, and the prisoner is allowed 60 days from the adjournment of this court within which to file his bill of exceptions.'' The court adjourned on the 24th day of March, 1910. The bills of exceptions appear to have been signed on the 29th day of April, 1910, more than 30 days after the adjournment of the court.
The express mandate of the statute is that "any bill of exceptions may be tendered to the judge, and signed by him, either during the term at which the opinion of the court is announced, to which exception is taken, or in vacation, within thirty days after the end of such term, or at such other time as the parties, by consent entered of record, may agree upon."
In this case the bills of exceptions were not signed by the judge during the term of the court at which the several opinions excepted to were announced, nor were they signed within 30 days after the end of such term, nor was any additional time agreed upon and entered of record by consent of parties. The order says: " * * * And the prisoner is allowed 60 days from the adjournment of this court within which to file his bills of exceptions." But it wholly fails to show that the 60 days was agreed upon and entered of record by consent of parties. This is a vital requirement of the statute, and the failure to comply with it and have the order show that the 60 days was agreed upon and...
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...The cases of State ex rel. Hensley v. Damron, 84 W.Va. 718, 100 S.E. 495; State v. Haddox, 50 W.Va. 222, 40 S.E. 387; Wright v. Commonwealth, 111 Va. 873, 69 S.E. 956; and Price v. Commonwealth, 33 Grat., Va., 819, cited and relied upon by the respondent to sustain the action of the trial c......
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... ... record cannot be amended at a subsequent term where there is ... no record or memoranda of the former order. Affidavits will ... not do. (Wright v. Commonwealth, 111 Va. 873, 69 ... S.E. 956; Kilmer v. Parrish, 144 Ill.App. 270; McKay ... v. People, 145 Ill.App. 277; 11 Cyc. 765.) ... ...
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