| Miss. | Jan 15, 1879
delivered the opinion of the court.
In May, 1877, the plaintiff in error was indicted for an assault and battery with intent to kill and murder.
The jury returned a verdict, written out on one of the instructions given them, in these words : “We, the jury, find the prisoner guilty as charged in the indictment, and recommend him to the mercy of the court.”
The clerk, in entering this verdict, entered it thus: “We, the jury, find the prisoner guilty of assault and battery, and recommend him to the mercy of the court.” Notwithstanding this entry of the verdict, the prisoner was sentenced, as upon conviction of a felony, to imprisonment for five years in the penitentiary. At a subsequent term of the court, the district attorney made a motion to amend the entry upon the minutes, and for a proper entry nunc pro tunc of the verdict as returned by the jury. Upon the hearing of this motion, there was admitted in evidence, against the objection of the pifisoner, the written memorandum of the verdict indorsed upon the instruction, and the oral testimony of the clerk, to the effect that it was the true verdict brought in by the jury, and that it had been by him read, aloud to them, and by them declared in open court to be their verdict, and that its entry upon the minutes in the form there found was a clerical misprision on his part.
This testimony was improperly admitted. It is the settled doctrine of this court that no correction of the record can
There was on the record, at the date of the hearing of this motion, a petition for appeal and an appeal-bond filed by the prisoner, in which he recited that he had been convicted of an assault and battery with intent to kill and murder, but it was not permissible for the circuit judge by these recitals to contradict the minutes of the court as to what had transpired upon the trial, and before judgment.
We see no invalidity in the return of the indictment into court. The supposed irregularity proceeds entirely from a blunder in putting together the pages of the transcript, by which the indictment is made to appear in advance of the recital showing the bringing in of it by the grand jury. The transposition of a single sheet of paper obviates the supposed irregularity, and it is evident that this should be done.
The judgment is reversed and the cause remanded, with instructions to the court below to sentence the accused as upon a conviction for assault and battery.