The times. [volume] (Richmond, Va.) 1890-1903, 1895-12-13

the General Court on account OF their
novelty and difficulty for It's opinion.
Among them were the following:
First. What is the legal effect OF an
omission on the part Of the clerk OF the
Circuit Court Of Washington county 10
enter on the oTdcr-bOok that the grand
jury at the last April term OF that court
had found an indictment against BenJa-
min Cawood and others "A true bill.
Second. Can such an omission be sup
piled by resorting to the paper purport-
ing TO be an indictment, copied into the
record by the clerk, and the endorsement
thereon purporting 70 have been made
by the grand jury finding II to be true
The case was very fully and ably ar
gucd. In answer to the first question the
court held that II was necessary 10 record
the finding Of the grand jury IN oroer 10
perfect the indictment.
In answer TO the second question, and
the one which is importent IN considering
the case at bar the General court said,
al page 545: "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 Eng
| land and referred 10 by the counsel,
leads us to the conclusion that during the
term the records are In the breast OF
the court. and that amendments may De
made i'm the proceedings OF the court
but that after the term has passed no
| amendment can be made, except mere
| clerical misprisons, that TINS is not
misprisiOn OF that klnd; tnat 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 II cannot be amended.
AMENDING OF RECORDS.
| In the case OF Burch vs. White. 3 Rand,
| 10f at the next term after the judgment
| was entered. an order was mace stating
| that at the previous term of the court an
| appeal had been allowed from the Judg-
ment, but that the clerk had omitted 10
enter II. and therefore the appeal was
/ allowed nunc pro tunc. This court said
| whether an appeal would lie from n judg-
| mcnt was q question Of law 10 be decided
! by the court. and the only evidence or
| what the court had done was the record.
IL was not a case IN Whicn there was any
| thing in the record 10 amend by For
| though an appeal bond had been nled in
| the Office. that furnished no proof that the
| bond had been received by the court OF
| that an appeal had been allowed.
| In Powell's case. II Graft. 81, the ac-
cused vas indicted for forgery, tried, and
| convicted. After the expiration OF the
! term at which he was convicted ne ap-
! piled TO the judge Of the Circuit Court ln
| vacation 10 amend the record. ana the
| judge made an order directing that th'.
| record should be amended so az 10 SNOW
| that upon the arreiRnment OF the pilS-
| oncr for the offence OF which he was con-
| victed ne moved the court, through MS
| counsel. 10 quash the indictment ana each
| count thereof. that this motion was over
/ llIIfOt bui Was OlllilfN ~ l' 'Iif'i''t HIN-'
| the record Judge Lee. In delivering the
| unanimous opinion OF the court said:
"Waiving the question whether the pro-
| vision IN the Code. chapter Isl secuoh p,
| page GSl. authorizing amenJments IN
| Judgments or DEGREES OF "a court IN GER
! tain cases by the judge in vacation, aitef
| the adjournment of the term, can apply
| 10 "A case of felony, IN which all the pro-
| ceedinRs should regularly be had IN pres
/ cnce OF the accused. or TO any criminal
| case. ] am yet OF opinion that no such
| amendment of the record as That al
| tempted to be made In this case hN tue
| action Of the judge in vacation on the
| nth of May. 1854, Is within the scope OF
| that provision. IL was intended 10 au-
| thorize amendments IN support oi Juus
ment in cases in which there was some
| thing in the record by Whirh they couH
! safely be made. 1t could not have bcen
| intended to authorize an amendment 10 ne
| made upon the individual recollection OF
| the Judge or upon proofs ahundc. Nor
was ire application in this case 10 amend
the Judgment nor was II designed 10 alu
the judgment when made. II was an at
plicstion TO introduce something INTO the
record as part thereof. not before round
therein, depending on the recollection or
| the judge. or upon proofs 10 oe submit
| ted TO him, and its object was 10 provide
| a means Of reversing the judgment not
| of sustaining IT,
THE construction given by the English
courts TO the statutes OF amendment re-
| ouired that there should be something 10
| amend by Tidd's Prac. 2i6 2i1. Com VS..
| WinstOns. 5 Rand. 5i6-OpiniOn Of Judge
Green And such is, ] think, The nlain
| meaning of the provision in question I'm
our statute. And II no amendment can
be made in the record OF a judgment at-
ter the term, except under the statute.
| or In the few cases allowed 10y the COM
mon law. of which this Is not one, the
amendment attempted 20 be made in this
case must be- disregardcd.'
Whether the authority of the courts IN
this State 10 amend its records after the
.aN. HHH. D.
entered be derived solely from our
statutes or from both the common law
ana the statute, IL is clear that under our
statutes. decisions and practices. what
ever may be the rule I'm other jurisdic-
tlOns they can only make amendments
In cases in which there is something ~
the record by which they can DE safely
made. and that amendments cannot be
made upon the individual recollection OF
the Judge or upon proofs aliunic.
There is nothing In the record in this
case. as certified boy the clerk OF the
County Court, by which the court Of that
county could amend II iu any OF the par
ticulars in which il is sought 10 have IN
amended. and II the court attempted 90
amend il. IL would be upon the jrdees
own personal recollection or upon proofs
allunde. This, we have seen, cannot ne
done.
The motion Of the Attorney-Gcne. 10
postpone the case until such amen lncnts
can be made must therefore Doc oyerruled
and the case disposed Of ON the iecord
as IL u.s.
IL Is assigned as error that the jury
which tried the accused was not selected
in the manner provided by law. in this
that section 1923 OF the Code requires thai
a panel OF sixteen persons. free from exc
ceptiOn shall be selected. from which The
accused may strike four and the remain
ing twelve shall constitute the Jury Tor
mis- trial. whilst the record shows that
sixteen persons We're selected. but fails
TO show that they were free from cAcep-
ton.
ANOTHER ASSIGNMENT OF ERROR.
Section si55 OF the Code as amended by
an act approved February %. 1884 tActs
of Assembly. 1898. chapter 49, page igD
provides that mo lrregularitv ia any
writ Of Vcnire facias or IN drawing. sum-
moning. returning. or cmpanncling OF
Jurors shall be sufficient 20 set aside
verdict unless the party making The Cb-
lection was injured by ihe irregllarity CT
unless the objection was made before the
swearing OF the jury
No objection was made I'm the trial rcUit
al any tirne TO this irrcgularisv. nor does
IL appear that the accused was injured tv
II This assignment OF error canuCt be
sustained
The accused was indicted jointly with
two other persons. but tried -eparltcly.
The record does not show gIOn wi se
motion she was tried, and this Is assigned
a. error Each and every person III
dictcd Jointly for a felony may elect as a
matter Of right 10 be tried separately uu-
der section 402q Of the Code and the At
torney for the Commonwealth has The
rieht to try them separately. subject 10
the control OF the court; but persons
Jointly indicted cannot be tried Jointly