State v. . Lewis

Feb 26, 1919

Versions:

Walker, J.,

after stating tbe case: We have no doubt as to tbe power of tbe court to amend its record by inserting tbe order for tbe summoning of tbe special venire, and tbe issuing of tbe writ to tbe sheriff, and tbe entering of bis return upon tbe process nunc pro tunc. Tbe order for these amendments and tbe correction of what was overlooked by tbe officers, that is, tbe clerk and tbe sheriff, related back to tbe time when tbe order or writ should have been issued by tbe clerk, and tbe retifro made thereon by tbe sheriff. When tbe court has tbe power we do not review its exercise, as it is.within tbe discretion of tbe court to decide whether it will exercise it or not. There are a vast number of authorities for this position, and there is nothing better settled by our cases than this rule. Phillipse v. Higdon, 44 N. C., 381; Clark v. Hellen, 23 N. C., 421 (approved in Henderson v. Graham, 84 N. C., 496) Seawell v. Bank, 14 N. C., 279; Cheatham v. Crews, 81 N. C., 343; S. v. Cauble, 70 N. C., 62; Bullard v. Johnson, 65 N. C., 436; Williams v. Weaver, 101 N. C., 1; Lutterell v. Martin, 112 N. C., 593; Grady v. R. R., 116 N. C., 952. There are many other cases more or less analogous to this one.

In S. v. Cauble, supra, this Court held that tbe Superior Court bad tbe power to amend tbe warrant by striking out tbe name of tbe prosecutor as plaintiff, it then having tbe form of a civil action, and inserting tbe name of tbe State, Justice Bynum saying: “Tbe power of tbe court to make any amendment in furtherance of justice is ample. C. C. P., sec. 132. Tbe change did not affect tbe defense or take tbe defendant at a disadvantage, and be therefore has no cause of complaint.” It was held in Clark v. Hellen, supra, and Chief Justice Smith stated in Henderson v. Graham, supra, approving Clark v. Hellen: “Amendments of process are not admissible when tbe effect will be to prejudice acquired interests or take away any defense which could be made to an action begun at the time of tbe amendments. Phillips v. Holland, 78 N. C., 31. Tbe power has been exercised in numerous cases in this State and precedents established for tbe present application. Thus it is held that a seal may be affixed to a writ issued to another county after its return, and tbe process, void without seal, thus rendered effectual. Clark v. Hellen, 23 N. C., 421. And this may be done to a fieri facias under which tbe defendant’s land has been sold, for tbe purpose *558 •of perfecting the purchaser’s title. The extent to which the power of amendment has been carried will appear in the'numerous cases which have come before this Court, and to which it is needless to refer in ■detail. Some of them are cited in Cheatham v. Crews, 81 N. C., 343,” citing Purcell v. McFarland, 23 N. C., 34; Seawell v. Bank, 14 N. C., 279. The power of the court to require the officers to do what it had ■ordered to he done is fully discussed in the very recent case of Mann v. Mann, 176 N. C., 353.

We therefore conclude that the court, in the exercise of its discretion, ■could amend the proceedings and allow the clerk to issue the writ and ■the sheriff to make a proper return nunc pro tunc. S. v. Whitt, 113 N. C., 716; Lutrell v. Martin, 112 N. C., 593; Grady v. R. R., 116 N. C., 952. An officer may be allowed to amend his return of process so as io’make it speak the truth, even though the amendments defeats the •plaintiff’s recovery of a penalty for a false return. Stealman v. Greenwood, 113 N. C., 355; Swain v. Burden, 124 N. C., 16; Swain v. Phelps, 125 N. C., 41. The judge’s finding of facts shows that the omission Rere was purely clerical, and could in no way affect any substantial right, so to cure it was plainly within his discretion. There seems to have been no other irregularity alleged in the further proceeding to .secure a jury, and if there was, it could not, in the absence of fraud or •corruption, affect the rights of defendant. S. v. Speaks, 94 N. C., 865; S. v. Hensley, ibid., 1021; S. v. Whitson, 111 N. C., 695; S. v. Brogden, 111 N. C., 656; S. v. Whitt, supra; S. v. Parker, 132 N. C., 1014.

In this record it appears that the court had ordered the sheriff to summon the venire of forty men, and it was the plain duty of the clerk ■ to enter this order in the minutes, and of the sheriff to obey it. If the clerk failed to do so, by inadvertence, the court could, at any time, require him to supply the omission and to issue, the writ, so that the sheriff could make his return. The jurors, wh'o were named in the • verbal order, were actually notified to appear at the court, so far as they could be found, and it amounted to nothing more than committing to writing that which was ordered to be done. How it could prejudice the prisoner in any way or in the least degree we fail to see. This .assignment of error, therefore, is unavailing.

The evidence admitted by the court was manifestly competent for the single purpose of contradicting the prisoner’s statement and the testimony of his witnesses that he was sick for two weeks, including 17 January, 1918, as one of the days, and it was thus restricted by the judge. This assignment also must be disallowed.

The other exceptions are merely formal.

There was sufficient evidence, in law, to support the verdict.

*559 It must, therefore, be certified that there is no error in the case or Tecord.

No error.