| Ill. | Jan 15, 1864
delivered the opinion of the Court:
The only question made in this case, is on the record itself. The plaintiff in error insists that it is not a record for reasons which he assigns. The first record was made out by the clerk of the Circuit Court, October 21, 1863, and very inartificially. It contained no placita and was wanting in important formal parts. It was, however, certified by the clerk to contain “ a full and true history of the proceedings in the trial of said cause, The People of the State of Illinois v. William Schirmer, which appear of record as is stated in the foregoing copy in my office.”
On certiorari, on behalf of the people alleging a diminution of the record, another record is sent up, which the clerk certifies to be “ a full, true and complete copy of the proceedings in the Circuit Court, in the case of The People of the State of Illinois v. William Schirmer, as appears of record and on the files in my office.” This is dated November 18, 1863, and is under the seal of the court.
This amended record, the plaintiff’s counsel moved the court to strike from the files, for the reason that there was nothing on its face warranting its reception and consideration by this court as a record, or any part of a record, of the proceedings in the Randolph Circuit Court.
This objection seems to include all made by the counsel for the plaintiff in error, and disposing of it will dispose, substantially, of all. The cases to which counsel has referred, are all cases wherein some instrument has been offered in evidence in a cause as a record. It is correctly said in those cases, whether the instrument offered is a record or not, is always open to inquiry. Brier v. Woodbury, 1 Pick. 362. It is there said that it cannot be doubted that anything produced as a record may be shown to be forged or altered; if it were not so, great mischief might arise. A record is understood to be conclusive evidence, but what is or is not a record, is matter of evidence and may be proved like other facts.
And if words have been struck out of a record so as to render it erroneous, witnesses may be examined to show such words were improperly struck out; but not to- falsify the record by showing that an alteration whereby the record was made correct, was improperly made. Dickson v. Fishers, 1 Bl. 664; S. C., 4 Burrows, 2267; Adams v. Betz, 1 Watts, 425" date_filed="1833-05-15" court="Pa." case_name="Adams v. Betz">1 Watts, 425.
The plaintiff’s counsel presents his own affidavit in support of his objections, in which he states he examined, on the 21st of October, 1863, the record book of the Circuit Court of Randolph county, and that there was not at that time any such record made and entered in that record book, or in any other book in the office of the clerk of that court, as the clerk has certified in his return to the certiorari.
This may all be true, as the clerk is not required to make a complete record in a criminal case. He makes out his transcripts for this court from the entries on his minutes and order book, and from the files in the cause. He takes daily minutes of the proceedings, and at his leisure, enters them in proper form in the order book, which, with the files, are the record of the cause. These entries, by the act of 1859 (Sess. Laws, 130), the clerk is required to make, before the final adjournment of the court at each term, or as soon thereafter as practicable. It is quite probable, when, on the 21st of October, the counsel inspected the record or order book, the entries had not been made.
The record sent up by the clerk, is certified under the seal of the court, and his oath of office, to be a true and full copy of the proceedings in the cause, and it is not shown by any evidence that it is not. Unassailed, it must be taken to be the record in the cause of the conviction of the plaintiff in error, and imports verity.
As to the contents of the record, it contains the placitum, recites the impanneling of a grand jury, the appointment of a foreman, the charge of the court, the retiring of the body to consider of presentments, and under the charge of a sworn officer. It further recites in regular order, the return of the grand jury into open court, with certain bills of indictment found by them as “true bills,” among which is an indictment in the name of The People of the State of Illinois v. William Schirmer, for murder. Then follows the indictment, the arraignment, the plea of not guilty, the impanneling of the traverse jury, the verdict and the judgment.
We are at a loss to perceive in what essentials this record is deficient. It is insisted by the plaintiff in error that it does not affirmatively appear the indictment was returned into open court by the grand jury. We think it does so appear beyond controversy or question. It is further insisted the record does not show that the indictment was indorsed a “ true bill ” and signed by the foreman. The record does show this substantially.
It is further insisted the record does not show that the petit jury was legally impannelecL There was no challenge to the array, and no objection made before trial on account of any irregularity in this respect, if there was any. It is now too late to make the objection, if it existed. §§ 162, 163, Grim. Code; Scales’ Comp. 403.
The sixth and seventh objections have no foundation. The record is as full bn the points made as there is any necessity to make it. The verdict of the jury follows the trial in regular order, and is so entered of record.
The eighth objection is, that the record does not show affirmatively that the defendant was present in court at the time the verdict was rendered, and at the time the judgment and sentence was pronounced. That he was personally present was shown by his arraignment, for that involves his personal appearance. No interval appears between the arraignment, trial, verdict and judgment, and the presumption, therefore, must be, the prisoner remained in court the whole time. The whole proceedings seem to have been very expeditious, and in the consecutive and continuous order in which they are stated in the record, they necessarily imply his personal presence during the whole time, including the moment when sentence was passed by the court. State v. Craton, 6 Iredell, 164. The fact of the prisoner’s presence can, by fair intendment, be collected from the record, and that is sufficient. West v. The State, 2 N. J. 212; State of Iowa v. Stiefle, 13 Iowa, 603.
We do not think any one of the objections are sustained.
As to the finding of the jury, we can only say we have nothing before us to test its propriety. We can imagine it was a case amounting to murder, but from some extenuating circumstances or horror of the death penalty, the jury were induced to find it manslaughter, and fix the highest punishment known to the law.
Perceiving no errors in the record, and believing that to be wanting in no essential to a perfect record, we affirm the judgement.'
Judgment affirmed.