61 Ala. 399 | Ala. | 1878
The statute of amendments is very broad and liberal in its terms, authorizing the correction of clerical errors or mistakes, on the application of either party, “ where there is sufficient matter apparent on the record or entries,” to support the amendment. The statute does not however extend to criminal cases. All courts of record have by the common law, an inherent power to correct clerical errors or omissions which may intervene in making up their records. During the term, the proceedings are in fieri, the record remains in the breast and remembrance of the judge, and the entries which are to form it, may be altered as he directs, to make them conform to the truth. After the adjournment of the term, if the record, or entries, or memoranda required by law to be made and kept, furnish clear evidence, the misprisions of the clerk may be corrected by them. The power of the court at common law, to make such corrections extended alike to civil and criminal cases— between them, there was no distinction. — Anonymous, 1 Gall. 22; Young v. State, 6 Ohio, 435; Sharff v. Commonwealth, 2
In entering the judgment of conviction originally, the clerk left blank spaces for the amount of the costs adjudged against the defendant, and the number of days he was to serve at hard labor in payment of them. The insertion of the number of days would have been immaterial, the judgment specifying that twenty-five cents per day, was the rate, at which the labor was to be performed. The clerk taxed the costs during the term the judgment of conviction was rendered, and filed in his office a written statement of them. The taxation of the costs, and the preservation of a bill or memorandum of them, is the duty of the clerk. No execution for their collection could properly issue, without having annexed as a part of it, a copy of such bill. This written statement was a quasi record of the court, from which the omission of the clerk to state in the judgment of conviction, the amount of the costs, could be supplied. — Farmer v. Wilson, 34 Ala. 75. Admitting the argument of the petitioner, that the omission rendered the judgment incomplete, it was the inadvertence of the clerk. The power of the court to correct it, is derived from the common law, and is plenary; the means of correction resting in writing, it was the duty of" the clerk to make and preserve.
Without intending to decide, that if the City Court had erred in the matter, mandamus is an appropriate remedy for the revision of the error, we have preferred to decide the question as it is presented by the argument of petitioner’s counsel.
Application refused.
