Weatherman v. Commonwealth

91 Va. 796 | Va. | 1895

Riely, J.,

delivered the opinion of the court.

This case is before us upon a rehearing, which was granted upon an assignment of error that was not passed upon in the opinion of the court delivered at the June term, 1894.

We concur in the opinion of the court, delivered by Judge Lacy upon the former hearing, which affirmed the judgment of the Circuit Court; and it is only necessary, therefore, to pass upon the single error assigned in the petition for a rehearing.

It appears that the judge of the Ciicuit Court omitted to sign during the term the orders of the court of the day on. which the jury returned their verdict of guilty against the accused, and this is the ground of error on which the petition for the rehearing is based.

It appears from the record that all the steps taken and proceedings had in the trial of the accused on that day, as well as on the other days during which the trial progressed, are wholly regular and in due form, and the only irregularity is the omission of the judge to affix his signature to the record of that day’ s proceedings. Is this an error for which the judgment of the Circuit Court should be reversed ? Section 3114 of the Code is as follows:

“ The proceedings of every court shall he entered in a book, and read in open court by the clerk thereof. The proceedings of each day shall be drawn up at large and read during that term, except those of the last day of a term, which shall be drawn up and read the same day. After being corrected, where it is necessary, the record shall be signed by the presiding judge.”

The statute does not in express terms prescribe that the orders of each day of a term of the court shall be separately signed, but that is the reasonable inference to be deduced from its language; and this is the general practice of the courts. The orders and proceedings of each day in a case are entered by the clerk in the order book under the direction of the court. These entries constitute the evidence of such of the proceedings as have taken place, and such of the orders as have been made by the court during the progress of the trial, as it is necessary should appear in the record, and the signature of the judge to the record authenticates them and establishes their genuineness. This, we apprehend, is likewise the effect upon all of the proceedings and orders of the term of the signature of the judge to the proceedings of the last day thereof. All entries made in the order book during the terra, which precede the signature of the judge, are thereby authenticated. And as the proceedings on the subsequent days, including the last day of the term at which the accused in the case at bar was convicted, were duly signed, the omission of the judge to sign separately the record of the proceedings of the day on which the verdict of the' jury was returned to the court and recorded, cannot invalidate the verdict of the jury or the judgment of the court. Ho order made by the court or proceeding had in a case during a term and entered by the clerk in the record book should be allowed to become invalid, or to fail of effect, by the omission of the judge, through inadvertence or neglect, to sign the record of the orders and proceedings of the day on which it was made or took place. Judge Staples, in commenting on the statute prior to its amendment, in Quinn et als. v. Commonwealth, 20 Gratt. 143, said: “But the failure of the judge to comply with the directions of the statute could not impair the rights of the Commonwealth, or those of a citizen, in the record. as an instrument of evidence, or a muniment of title, or an absolute guaranty against a second prosecution and conviction for an offense already passed upon by a jury. Had the petitioners been acquitted, they cculd never have been questioned a second time for the same offense, although the judge had failed to sign the record. In the event of such failure, or a refusal on his part to do so, he might be compelled by mandamus to perform that duty. ’ ’

It is the apparent intention of the statute that each day’s proceedings, when read and corrected, where it is necessary, (which, under the statute, may be done during the term), should be separately signed; and, while we do not deem this essential to the validity of the proceedings, where the record is signed by the judge at the close of the term, yet there should be no laxity in this respect, but the intention of the statute for good and obvious reasons should be rigorously observed and obeyed.

That which was intimated in the quotation from the opinion - in Quinn et als. v. Com., supra, that where the judge has failed to sign the record he might be compelled by mandamus to do so, the judge of the Circuit Court did voluntarily in the case at bar. At the next succeeding term of the court, upon his attention being called to the omission, he then, with the following recorded statement, “Having inadvertently failed to sign this day’s orders, and my attention being now for the first time called to the fact of the omission, I now, on this 9th day of .November, 1892, sign the same now for then,” affixed his signature thereto nunc fro tuno. There would certainly be no illegality in doing voluntarily what he could have been compelled to do.

The power of courts to make entries of judgments and orders nunc fro tyano, in proper cases and in furtherance of the ends of just’ce, has been recognized and exercised from the earliest times; and the period in which the power may be exercised is hot limited. Freeman on Judgments, sec. 56; 1 Black on Judgments, secs. 126, 131; 16 Am. & Eng. Encyl. of Law, 1005 and note thereto; Mitchell v. Overman's adm'r, 103 U. S. 62; and Allen v. Bradford, 37 Amer. Dec. 689. And this power may be exercised as well in criminal prosecutions as in civil cases. Freeman on Judgments, note to sec. 56; and Burnett v. State, 65 Arner. Dec. 131. If a court would have the right to enter a judgment and authenticate the record thereof now for then, it follows as clearly as the greater includes the less, the whole a part, that the judge may sign in like manner the record of a judgment rendered or a proceeding had at a previous term and duly entered by the clerk upon the order book.

But it is further objected that the orders were signed by the judge in the absence of the accused. This was not error. Signing the record of the proceedings of the court was not a step in the prosecution of the accused, or any part of his trial. It was simply the authentication by the signature of the judge of the orders and proceedings that were made and had that day in the trial of the accused, when, as the record clearly shows, he was present in person.

There is no error in the judgment of the Circuit Court, and it must be affirmed.

Affirmed.