The indictment contained four counts, charging fornication, adultery, adultery and fornication, and fornication and adultery. There was a general verdict of *9guilty. During the same term the defendant moved in arrest of judgment, upon the ground that the verdict did not show on which count he was convicted, and that nothing appeared to show for what crime he was sentenced. The court overruled the motion, stating that on the trial the solicitor-general elected orally to proceed upon the count charging the defendant with fornication, and that in the charge to the jury they were limited to the consideration of that count. The court also granted an order reciting that at the time of the trial the defendant’s counsel demanded that the solicitor-general be required to elect upon which count he would proceed, and the court having so ordered the solicitor-general to elect, he elected to proceed upon the count charging the defendant with fornication; and that, it appearing that no record was then made of said election, the clerk is hereby ordered, in open court during the same term at which the case was tried, to enter said order upon the minutes so as to make them speak the truth. The defendant was not present when this nunc jpro tunc order was granted. He excepts to the grant of it, and to the denial of his motion in arrest of judgment, alleging that, this being a criminal case, the verdict having been rendered, jury long since dispersed, and j udgment regularly passed against defendant, the record was complete, and the court therefore had no further legal authority over the case so as to order anything entered of record that did not then appear upon the face of the proceedings, and only before existed in parol; and that the order changed, modified and altered the verdict and sentence and their effect.
George & Walter Harris, for plaintiff in error.
W. J. Nunnally, solicitor-general, contra.