The case comes here from an entry made by the district judge, as a nunc pro tunc order, in the record of the case made in a trial, held before him some two years previously. The complete record in the original case is found in this court in thе case of Grammer v. State,
It appears from that record, as stated by this court in its opinion in In re Application of Cole,
The statute (Rev. St. 1913, sec. 9130) requires the court, upon a plea of guilty being made in a homicide case to take testimony, and, upon that testimony, the court itself must determine the degree of the crime. In such a рroceeding, after a.plea of guilty, any introduction of testimony with
The trial court, by taking testimony with reference to the crime committed by Cole and after Cole had pleaded guilty, had jurisdiction to determine the degree of his crime. Such a judiсial determination was, in fact, made by the court in its instruction to the jury as follows: “You are instructed that the defendant Alson B. Cole, upon being arraigned in the manner and form hereinafter set out and entering a plea of guilty to murder in the first degree, is thereby convicted of said crime.” The instruction then advises the jury that it was for the jury to determine the question only of the рenalty to be imposed.
This instruction fixed the degree of the crime definitely and finally and beyond the power of the jury to change or modify it. The court made this adjudication and the jury had no part in it. The adjudication, on its face, apрears to be erroneous. It recites that Cole was guilty of murder in the first degree, by reason of his plea of guilty. Though the сourt may have disregarded the testimony introduced for the purpose of fixing the degree of the crime and may havе determined that Cole was guilty by reason of his plea of guilty, still, from the fact that the court erroneously came to thаt conclusion, it does not necessarily follow that the court was without jurisdiction. The reason given by the court would be nо different in nature than if the court had erroneously stated that certain particular evidence was sufficient to convict the accused of murder in the first degree, in' a case where the evidence was not, in fact, sufficient as a basis for such a conclusion. In either event, the reason given by the trial court would be a mere error in the exerсise of his judicial powers in a matter where he had full jurisdiction to ultimately determine the degree of the crime. The dеcision by the federal court, decid
The error оf the trial court was not jurisdictional, though it was an error that might have been taken advantage of by a direct proсeeding for review brought to this court. No such proceeding wrs ever had. Such errors are not subject to collateral attack. Fuller v. Fenton,
Following the decision of the federal court, the trial court has made an entry attempting to correct his record, to the effect that he did, in his own mind, at the time of the trial, from the evidence adduced, determine uрon the degree of the crime, though he had given no expression to that decision except that which is contаined in his instructions to the jury.
It is the contention of the defendant’s counsel that the original record is insufficient to support thе conviction, and that the entry by the trial judge is an unlawful and ineffectual attempt to correct a defective rеcord.
Whether or not such an entry could be considered by this court as legally or properly made, or as having аny force or validity, it is unnecessary to determine.
We are of opinion that the original record, as it stood priоr to the making of such entry, was sufficient to show
The proceeding in error is therefore
Dismissed.