67 Mo. 647 | Mo. | 1878
— At a regular term of the Benton circuit court in August, 1874, the defendant was indicted for laboring on Sunday. At the August term, 1875, of said court, the indictment having been lost, the court permitted
It is well settled that, independent of any statute, a lost, mutilated or destroyed record may be supplied. The contents of a lost or destroyed record may be established by secondary evidence in a suit between individuals, and there is no reason for confining this to civil proceedings. Why should not the same doctrine apply to records in a criminal case? The record is in the same custody and made by the same authority, and is of no less solemn a character in the one case than the other. This would probably be conceded, but it is said that an indictment stands upon a different ground, being a record made, not by the court, but by the grand jury, and cases in Alabama, Virginia and Tennessee seem to recognize that distinction. We are.not impressed with its soundness. The court does not frame the plaintiff’s petition or .the defenáant’s answer, yet, when they are filed, they become records of the court, and, if lost or destroyed, may be supplied. In Harrison v. The State, 10 Yerg. 542, the court observed “that a court has the power to alter and supply from its memory alone any order, judgment or decree pronounced by it at the same term, and this manifestly because the term constitutes but one day in the estimation of the law, and everything is in fieri that is not unalterably fixed and determined by its adjournment. This principle, doubtless, applies with more force to things which have emanated from the court itself, because the judge may not recollect
It is, we repeat, not a question of amendment; and, as to a record already made and concluded by the adjourn
Reversed.