The opinion of the court was. delivered May 20, by
Gibson, C. J.
The artistic form in which the sentence stands *133recorded, proves that the clerk of the court had consulted a precedent. The verb is in the present tense and third person, and the words of the pronouncing judge are not put down exactly as they dropped from his lips. Even the prayer for mercy is properly omitted, as it is no part of the judgment. So far all is unusually well. But for every thing besides, it is plain from the journalizing of the proceedings in the past tense, that the clerk’s knowledge of the principles and forms of criminal law was too limited to serve him in applying his precedent to the proceedings with entire advantage. The-details of the trial, embracing as they do, the bringing of the prisoner into court; the direction of the court to draw a jury from the proper box; the clerk’s compliance with it; the qualification of the jurors as “ sober, intelligent, and judicious menthe polling of the jury, and much more of the sort, show that the officer was too intent on the small beer of the case to attend to essentials; for the entries seem to have been made with a view to obviate some of the exceptions taken in Dunn v. The Commonwealth. However that may be, we find no entry that the prisoner was demanded whether he had any thing to say why sentence of death should not be pronounced on him, the absence of which was ruled in Rex v. Geary, 2 Salk. 630, and the King v. Speke, 3 Salk. 358, to be fatal. In fact, there is nothing on the docket to show even that the prisoner was present when he was sentenced, except the supplementary memorandum that “ he was present in court during every stage of the trial, from the time of his arraignment Up to the time when the sentence was passed by the honorable Ellis Lewis, president judge of the court, on him. Indeed, the whole trial, from its commencement to its termination, was according to law.”
A record is constituted of proper and legitimate elements set down in their order; for it is certainly not law, that all the gossip a clerk or prothonotary writes down in his docket, ipso facto, becomes the very voice of undeniable truth. The judges of a court of error must determine for themselves, and consequently on facts instead of sweeping asseutiks. The premises to found a sentence of death are set forth in Chitty’s Crim. Law 720, and the form of the entire record is given in 4 Black. Com. Ap. 1, in which there is a demand of the prisoner “ if he hath or knoweth any thing to say wherefore the said justices ought not, on the premises and verdict, to proceed to judgment and execution against him,” together with his answer, that he “ nothing further saith unless as he before had said.” With us a full record is seldom, perhaps never, formally made up; but the docket, which stands in its place, must contain the substantial parts of it, from which, together with the other records in the office, such a record might be formed. It is because the proceedings remain in paper that we have been able to dispense with strict form as to tense and person, holding fast *134however to matter of substance. But even the forms of records are deeply seated in the foundations of the law; and as they conduce to safety and certainty, they surely ought not to be disregarded when the life of a human being is in question. Our practice of rotation has excluded experience from the county offices, and it would perhaps be profitable were the presiding judge to superintend the entries. It would at least prevent our judicial records from becoming entirely barbarous. The clerk is the immediate officer of the court, which is consequently responsible for his acts. Writ of error allowed.
At a subsequent day, the counsel for the prisoner applied for and obtained a writ of habeas corpus; and the prisoner having been brought before the Supreme Court by Jacob Huber, Esq., the high sheriff, in obedience to the writ, T. E. Franklin, Esq., Attorney General, appeared and stated that it was not the intention of the officers of the commonwealth to prosecute the case any further.
Judgment was reversed and the prisoner discharged.