Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-12-13

JuuiSldi IccOruS, anu tne lew cdScs WhiS"
we have in our reports upon the subject
show how effective they have been in
preventing litigation. and the slight
changes that have been made in them
during the long period they have been in
force show how successfully they have
accomplished the purposes for which they
were enacted.
In Cawoods case. reported in Second
Virginia. cases 527. decided by the General
Court in 1926. six questions were adjourn
ed by the Superior Court of Wythe county
to the General Court on account of their
novelty and difficulty for its opinion.
Among them were the following:
THE QUESTION OF OMISSIONS.
Il. What is the legal effect of an omis-
sion on the part of the Clerk of the
Circuit Court OF Washington county 20
enter on the order-boo that the grand
jury at the last April term of that court
had found an indictment against Bsnja-
jamin Cawood and others, "a true bilr?
"2. Can such an omission be supplied by
resorting TO the paper purporting to be
an indictment. copied into the record by
the Clerk. and the endorsement thereon
purporting to have been made by the
grand jury finding 1t TO be true bi.l?'
The case was very fully and ably ar
gued. In answer to the first question the
court held that 1t was necessary to record
the finding of the grand jury in order to
perfect the Indictment
In answer to the second question ana
the one which is important in considering
the case AT bar the General Court said
at page 5i5: "The next question is.
whether the omission of the grand jury
can now be supplied. and whether the
record can be amended in this particular.
A view of the decisions of this country
and in England, and referred to by the
counsel. leads TO the conclusion that
during the term the records are I'm the
breast Of the court. and that amendments
may be made In the proceedings or the
court; but that after the term has passed
no amendment can be made, except mere
clerical misprsions that this is not a
misprision Of that kind; that the term
having passed, there is nothing to amend
by, except the memory Of the Judge, OF
the Clerk, of the grand jurors. and others;
and that IL cannot be amended"
NUNC PRO TUNC ORDERS.
In the case of Burch VS.. White. 3 Rand.
104. at the next term after the judgment
was entered, an order was made stating
that at the previous term of the court an
appeal had been allowed from the judg-
ment, but that the Clerk bad omitted TO
enter it, and therefore the appeal was al
lowed nunc pro tune. This court said
whether an appeal would lie from
Judgment was question of law to be
decided by the court: and the only evil
dence Of what the court had done was the
record Ii was not a case in which there
was ANYTHING in the record TO amend by.
For though an appeal bond had been
filed in the Office. that furnished no proof
that the bond had been received by the
court, or that an appeal had been allow
ed
In Powell's case. II Graft, 22, the ac-
cused was indicted for forgery. tried, and
convicted After the expiration of the
! term at which he was convicted he apph-
! ed to the Judge of the Circuit Court IN
vacation to amend the record ana the
Judge made an order directing that the
record should be amended so as TO snow
that upon the arraignment OF the prisoner
for the offence of which he was convicted
he moved the court, through his counsel.
10 ouash the indictment and each count
| thereof that this motion was overruled,
but was omitted to be entered upon the
record.
OPINION IN POWELLS CASE.
Judge Lee. in delivering the unanimous
opinion OF the court, said:
..Waiying the question whether the pro-
vision i'm the Code. chapter Isl, secuon o.
| mage 6Sl. authorizing amendments III
| judgments or DEGREES of court In certain
| cases by the Judge in vacation, atter the
adjournment of the term, can Apply 10
/ a case of felony, in which all the pro-
ceedings should regularly be had in pres
once of the accused or to any criminal
/ case I am vet Of opinion that no such
| amendment of the record as that attempt
| cd 10 be made in this case by tne acuoil
of the Judge in vacation on the llth vi
| Nav 1854 is within the scope OF tnat
| nroyision IL was intended to authorize
amendments in support OF a Judgment IN
/ cases in which there was sone'hins IN
the record by which they could salely DC
made. 1t could not have been ih'eiiueu 70
| anthorize an amendment TO be maue upoH
,he Individual recollection OF the judge
or unon proofs aliunde. Nor was the ap-
rucation in this case TO amend the Juug-
,nent nor was it designed 10 alo tne
s..1e,,oapt when made. Ii was an appii-
I cat;or 10 introduce something into the
record as part thereof not before louhu
therein. depending on the recoilec'loh .,
the Judge. or upon proofs to De suoiiii.'eu
TO him: and its object was 10 p'os'u q
Lens of reversing the judgment, not OF
sustaining IL. - -, .ho I,,o,,sh
.o,,rts to the statutes Of amendment re-
-','trad ,bat there should be something 10
nend eu.s Inv. Tidd's Prac.. 2i6-2i1; Common
si.h vs Winstons, Rand, 5i6, opln-
49, I,,dpe Green. And such Is, L think'
~ ~. Lain meaning OF the provision ID
| sn.ation I'm our statute Ana III no a'"en"
,oo,t can be made in the recoru oi
indgment after the term eNcep' s'ue,
The statute, or I'm the few cases ai'o ,'D. -
80 .ha common law. of which this Is NOT
py -" ,na amendment attempted TO De
- - a, this case must be disregaroeu'
GUIDED BY THE RECORD.
,,,,.~.hor the authority OF the courts In
~ !" e,a,s m amend their records ofter the
.s,, .'.1 =, which a fnal judgment mas peen
.n.ea he derived solely from our
e.a,,,tes or from both the common law
and the statute. 1t Is clear 'ns' u,u'i n
80. statutes. decisions. and practces'
.natever may be the rule in other Juris-
alctlons. they can only make ainenu-
ments In cases in which there Is soiie-
thing In the record by when they can
he safely made. and that amendments
r, " he made upon the Individual re-
collection OF the luuse vi upon P''0'
rhere Is nothing in the record in this
osa a. certified by the Clerk of the
comfy Court, by which the court
~ that county could amend II IN
any Of the particulars In which II
H. soueot TO have II amended. and II
II, co',,t attempted to amend IT,. II would
ha mon the Judges own personal recoi-
,ectson or upon proofs aliunde. This,
we have seen. cannot be done. =.
The motion OF the Attorney-General to
,os'none the case until such amend
,nents can be made must therefore be
overrulcd and the case disposed OF on
the record as II Is.
SELECTION or THE JURY.
IL Is assigned as error that ihe Jury
which tried the accused was not selected
In the manner provided by law. IN TINS