47 S.E. 6 | N.C. | 1903
DOUGLAS and WALKER. J J., dissenting. *136
This case was before us at last term, S. v.Marsh,
If this were an application to rehear a criminal cause the Court would not entertain it. S. v. Council,
The same point, after similar action upon an untrue record caused by the false certificate of the clerk of the lower court, has been passed upon by the Supreme Court of Florida and the motion to restore the cause to the docket allowed. Lovett v. State,
In Lovett v. State,
Mistakes of this Court or of its clerk, not mistakes of law but of fact, have often been corrected after the mandate has gone down, and even at subsequent terms. Scott v. Queen, (187)
In this case the Court, through error for which the appellant is responsible (for it was his duty to bring up a true record), has taken action on a bill of indictment on which the prisoner was not tried, and on nothing whatever that took place at that trial. We are not asked to reverse our judgment but to correct an error of fact. The prisoner brought up the record. He presented us, as an alleged error, a statement of a matter which was false. The record he presented stated that the indictment on which he was tried omitted the words "against her will." He relied upon that omission and asked an arrest of judgment on that account. We allowed itsolely on that account. He has no ground to ask to benefit by that untrue statement in the record he presented to us, and it is immaterial that it does not appear how the omission came to be made. The case has never been before us.
In civil cases counsel on both sides have opportunity to scan the whole record carefully, and if there is omission or other error ordinarily a certiorari can and should be applied for (188) before the cause is called for argument. But in criminal actions the rotating solicitor has no opportunity to see the record proper nor any part of the transcript except "the case on appeal" served on him, and does not see even that after the clerk copies the case "as settled." When as here there was no point made below on the bill of indictment, the indictment made no part even of the "case on appeal" served on the solicitor. There is no provision of law nor any practice requiring solicitors to go back to the county seats, nor to have full transcripts of the record sent them before coming up to this Court. The Attorney-General is bound to rely upon the correctness of the record laid before him. He was not at the trial below. If, therefore, a clerk can omit material parts of the indictment and the defendant, notwithstanding the duty is on him to bring up a true record, can profit by this error of fact (whether intentional or unintentional could rarely if ever be shown), new trial will depend not upon the correct rulings of the judge below, but upon *139
the greater or less carefulness of the clerk or of the copyist, often furnished him by the appellant. It is not sufficient to say that the appellant can be again put on trial. There is the expense to the public of another trial, and witnesses may have moved away or died. The State is entitled, in the interest of justice, to have the cause presented here on the record as the matter was presented below, and it is the duty of the appellant to bring up such true record. When there is a fatal mis-statement of fact therein appellants must understand that their negligence in presenting a false record (to put it in the mildest form) cannot avail them any more than if they had made the omission fraudulently, which can never be shown. In S. v. Daniel,
In England a defendant in criminal cases is allowed no appeal. We allow an appeal, but the burden is on the appellant to assign his errors and bring up a true record. When he fails to do either he cannot take profit from his omission of duty.
The judge below having from inspection of the record found that the indictment on which the appellant was tried in fact contains the words "against her will," and that being already certified to this Court, the record here can be amended to include them, as upon certiorari, and the cause will be restored to the docket to be heard in its order upon the exceptions taken below when the district to which it belongs is called, unless for cause shown it is placed at the end of the district or at the end of the docket for this term.
It does not appear that the words were omitted by the fraud of the appellant or of any one for him. If it did the appeal should properly be dismissed. The motion to restore the cause to the docket is allowed.
Motion allowed.