4 Mo. 286 | Mo. | 1836
Opinion of the court delivered by
The counsel for the petitioner concede that in general a record cannot be contradicted. But they contend that the third section of the fifth article of our constitution, c°nfers on this court the power of which they now claim the exercise. That section reads thus: “The supreme court shall have a general superintending control over jj inferior courts of law. It shall have power to issue writs oí habeas corpus, mandamus, quo warranto, certi-orari, and other original remedial writs, and to hear and determine the same.” If indeed'this court can, under this provision of the constitution command a judge of the
Prom the earliest days of the history of judicial proceedings, the courts have had it in their power to falsify the record in this manner, and if our convention intended the superintending control given by the third section to cure such an evil, they certainly provided a very inefficient remedy. For a prisoner might be condemed and hanged in the vacation of this court; this court then, if designed to take this liberty with records of the courts of original jurisdiction, should have been continually in session. It seems then that the convention intended that this court should superintend and control the circuit court in such manner only as is directed by the written law of the land, and the common law, as adopted by the written law. It may be observed that no intentional misconduct is imputed to the judge; and no convention would probably frame a constitution with a view to the probability of such an act being committed by a judge.
If indeed a judge were to be found perverse enough to make up a record falsly, there would still be virtue enough left in the community, to save the prisoner by a prompt and'correct representation of his case to the governor, who would relieve him without going through the tedious and dangerous process of altering the record, a thing-against which the wisdom of ages has said nothing can be averred.
In our opinion, the motion for a mandamus ought to: be overruled, and it is accordingly done.