Opinion
December 20, 1930.
1. FORMER JEOPARDY: Jury Sworn: Nolle Prosequi. Minutes showing that at a former term of the court a "jury was selected, sworn and qualified" and a record reciting that "comes the following jury . . . twelve good and lawful men, duly elected, tried and sworn to well and truly try the issues in this cause and a true verdict render according to the law and evidence" and "now at this time comes the prosecuting attorney and says that he will not further prosecute this cause and voluntarily enters a nolle prosequi" and that "it is therefore ordered, considered and adjudged by the court that the defendant be and is hereby discharged," shows the jury had been sworn to try the case before the nolle prosequi was entered, and that therefore defendant was in jeopardy and that he cannot be tried again for the same offense.
2. FORMER JEOPARDY: Jury: Selected: Sworn. The word "selected" in the minute recital: "Jury selected . . . sworn qualified," cannot be interpreted to mean that the jury had merely been selected and was not sworn to try the case. It means that twelve jurors had been qualified upon their voir dire examination to try the case, and they are not qualified until they have taken a further oath well and truly to try the issues joined and a true verdict render. And that the jury was thus qualified is indicated by the words "Sworn Qualified" following it; and that the clerk intended the minute to be so understood is indicated by his recital made in the record from the minute that the jury was sworn to try the issues and a true verdict render. The entry in the minute book is consistent with the formal record entry showing that the jury was sworn to try the issues, and together they show clearly that defendant was placed upon his trial.
3. ____: Jury Sworn: Correcting Record: Nunc Pro Tunc: Oral Testimony. Where the record and the minutes show that a jury was qualified, selected and sworn to try the case, and that thereafter the prosecuting attorney entered a nolle prosequi and the defendant was discharged, the court cannot, at a subsequent term, upon the oral testimony of witnesses and the statement of the trial judge, change said record to show that the jury had not been sworn when the nolle prosequi was entered. A judgment cannot be set aside at a subsequent term upon the memory of the trial judge and the testimony of witnesses, no matter how credible or how great the number of witnesses.
4. ____: Same Defendant: Proof. It is not incumbent upon defendant to show that he is the same person tried at a former term, where the two informations are identical and he is designated in both as the accused by the same name. The inference of fact of identity of persons arises from identity of names.
5. ____: Identity: Admission: Motion to Correct Record. The State admits that the defendant in the pending information is the same person who was placed on trial and tried at the former term, by filing a motion asking that the record at the former term showing he was placed in jeopardy be corrected and changed to show that he was not then placed upon his trial.
Appeal from Washington Circuit Court. — Hon. E.M. Dearing, Judge.
REVERSED AND DEFENDANT DISCHARGED.
Richeson Richeson for appellant.
(1) A person cannot be twice put in jeopardy for the same offense. Sec. 23, Art. 2, Mo. Constitution; Sec. 3696, R.S. 1919. (2) Where a jury is impaneled and sworn, the information being sufficient and the court having jurisdiction, the jeopardy of the person accused begins. State v. Snyder, 98 Mo. 555; State v. Wiseback, 139 Mo. 214; State v. Manning, 168 Mo. 418. (3) The court cannot amend its record at a subsequent term by parol testimony, or matters outside the record. (a) The court cannot amend its record at a subsequent term unless there be some note or memorandum in the record to show the fact from which the amendment could be made. State v. Gartrell, 171 Mo. 489; State v. Jeffors, 64 Mo. 376. (b) A fact cannot be incorporated into the record upon what the judge or some other person remembers, or upon ex parte affidavits or upon testimony taken after the term has expired. 16 C.J. 1324, note 61; State v. Gastrell, 171 Mo. 489. (c) Where the court omitted to make an order which it might or ought to have made, it cannot be made at a subsequent term by a nunc pro tunc entry. Gibson v. Chouteau Heirs, 45 Mo. 171; Turner v. Christy, 50 Mo. 145; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 134; Fletcher v. Combs, 58 Mo. 430; State ex rel. v. Grimm, 61 Mo. 170; Woolridge v. Quinn, 70 Mo. 371; Belkins v. Rhodes, 76 Mo. 651; Ross v. Railroad, 141 Mo. 395. (d) In the exercise of this power (to amend the record) the action of the court must be based on the judge's minutes, the clerk's entries, or some papers on file in the case, and not upon the judge's recollection of what took place at the trial or upon outside evidence. Fetters v. Baird, 72 Mo. 389; Ry. Co. v. Horschlag, 144 Mo. 253; Young v. Young, 165 Mo. 624; Akin v. Buckner, 203 S.W. 242; Burton v. Burton, 232 S.W. 476; State v. Jeffors, 64 Mo. 376; Osagera v. Schaff, 240 S.W. 128; Reed v. Cope, 213 Mo. 577; State v. Libby, 203 Mo. 596; Ross v. Railroad Co., 141 Mo. 390; Bank v. Allen, 68 Mo. 474.
Stratton Shartel, Attorney-General, for respondent; Otis Patterson of counsel.
(1) There seems to have been no justification in fact for the plea of former jeopardy excepting that the clerk of the court had made a clerical error in writing up a judgment of dismissal in a former case in which the name of Francis M. Mason appeared as the name of the defendant. The minutes of the court as well as certain pencil memoranda made officially by the deputy clerk as to the case at the time did not justify the recital in the judgment that the jury had been sworn to try the case before the nolle prosequi was entered. The minutes of the court and the pencil memoranda showed that the jury had been sworn and qualified and that showing corresponds with the facts. The defendant's plea of former jeopardy was without foundation in fact and was simply an effort to take undue advantage of an untrue and erroneous recital in a former judgment of dismissal. (2) It is true that the judge of the court has no right to order a correction of a record of his court of a former term of court, based only upon his own recollection, even though his recollection be absolutely accurate and correct, and the court did not do that in this case. It is true that he expressed his recollection very positively and very definitely to the parties concerned, when the question was brought up before him by the defendant's plea of former jeopardy; but he did not allow the motion for the correction by nunc pro tunc order upon his recollection. The minutes of the court and the pencil memoranda of the deputy clerk relative to the case showed very plainly that an error had by some means crept into the record of the judgment of dismissal whereby it was erroneously recited that the jury had been sworn to try the case when as a matter of fact the jury had not been sworn to try the case. The court simply permitted the error that was obvious and manifest from the minutes of the court in the case, to be corrected as the court had the right to do and as it was the duty of the court to do so as to make the record speak the truth. State v. Collins, 225 Mo. 633; State v. Gordon, 196 Mo. 196; State v. Eaton, 191 Mo. 154. (3) The appellant's plea of former jeopardy failed in another very important element besides being unfounded in fact. It failed for the reason that there was no evidence offered by the defendant to sustain this claim as to the identity of the parties and the identity of the charge in the two cases alleged. A plea of former jeopardy is unavailing without record proof. The facts must be alleged and proved as alleged in order to sustain such a plea. State v. Broyles, 295 S.W. 550; State v. Ross, 279 S.W. 411; State v. Rozell, 279 S.W. 705. (4) The court may always at subsequent terms set right mere forms in its judgments or correct misprisions of its clerks or mere clerical errors so as to conform the record to the truth, the record in the case showing the facts which justify the entry. State ex rel. v. Primm, 61 Mo. 170; State v. Gartrell, 171 Mo. 504.
Defendant was tried in the Circuit Court of Washington County for the crime of committing an abortion upon one Opal F. Province. He was found guilty and his punishment was assessed by the jury at imprisonment in the state penitentiary for three years. From the judgment entered on such verdict, he has appealed.
The first question for determination is the correctness of the action of the trial court in overruling defendant's plea of former jeopardy. The information under which defendant was convicted was filed July 20, 1928. The offense Former Jeopardy: was charged to have been committed in January, Jury Sworn. 1927, In support of his said plea, defendant offered in evidence an information filed July 27, 1927, which in language practically identical with the information in the case at bar, charged that on the ____ day of January, 1927, Francis M. Mason committed the crime of abortion upon Opal F. Province. It was further shown that defendant was tried under said information at the November Term, 1927, and that the jury failed to agree upon a verdict and was thereupon discharged.
Thereafter and at the March Term, 1928, the following record entry appears:
"Now at this time comes the Prosecuting Attorney for the State, and the defendant, Francis M. Mason, in his own proper person and by his attorneys herein, and having heretofore waived formal arraignment, and entered a plea of not guilty, both parties announce ready. Thereupon comes the following Jury, to-wit: . . .
"Twelve good and lawful men, duly elected, tried and sworn to well and truly try the issues in this cause and a true verdict render according to the law and the evidence. Now at this time comes the Prosecuting Attorney and says that he will not further prosecute this cause and voluntarily enters a nolle prosequi.
"It is therefore ordered, considered and adjudged by the court that the defendant, Francis M. Mason, be and is hereby discharged from his recognizance and that he go hence without day and have and recover from the plaintiff, his proper cost herein expended."
The following entry from the minutes of the March Term, 1928, at page 131, was then offered by defendant, to-wit:
"State of Missouri, : 208 vs. : Abortion. Francis M. Mason. :
"Jury Selected. ............................ Sworn Qualified.
"Then Prosecuting Attorney enters a Nolle Pros."
Defendant also offered files and records showing other proceedings, which we deem it unnecessary to set out here. It suffices to say that none of them tends to show Nunc Pro Tunc: that the jury was not sworn to try the issues at Correction. the March Term, 1928. The State then offered oral testimony, over the objection and exception of defendant, tending to show that, upon defendant's second trial at the March Term, 1928, the jury was not sworn to try the issues. The trial judge stated his own recollection to that effect. No record, minutes, memorandum of the trial judge, file, paper or other documentary evidence other than those put in evidence by the defendant, was offered by the State. The prosecuting attorney thereupon filed the following motion:
"Now at this day comes Edward T. Eversole, Prosecuting Attorney, on behalf of the State of Missouri, prays the court to make an order Nunc Pro Tunc, in the above entitled cause, causing the records, as made in the March Term, A.D. 1928, to conform to the facts, in this to-wit: whereas the records now stand, that the defendant, Francis M. Mason, was put upon his trial and a jury chosen, sworn and qualified to try the cause and charged to try the same, and the State by the Prosecuting Attorney, dismissed the cause, etc., when in fact the cause had been called for trial and the jury had been chosen, but the jury was not sworn to try the cause nor charged to try the same, when the State by the Prosecuting Attorney, dismissed the cause.
"Wherefore the State by the Prosecuting Attorney, prays the court to make the aforesaid order, making the records of this court conform to the facts and thereby correct the error in the records of this court."
This motion was sustained and the court made and entered the following order:
"Comes now the attorneys for the plaintiff and files motion to correct record. The same after having been taken up, seen and heard by the court is in all things sustained and the record is ordered to be corrected by striking out the words `Jury sworn to try cause' and record to read, `Prosecuting Attorney enters Nolle Pros.'"
Thereupon the court overruled defendant's plea of former jeopardy over the objection and exception of defendant.
It is clear that the oral testimony of witnesses and the statement of the trial judge tending to show that the jury, at the March Term, 1928, was not in fact sworn to try the cause could not properly be received and cannot be considered to contradict the record, showing that the jury was then so sworn. The learned Attorney-General makes the following statement in his brief:
"It is conceded that a person cannot be twice placed in jeopardy for the same offense: that where a jury has been impaneled and sworn to try the case, the information being sufficient and the court having jurisdiction, that jeopardy of the person accused begins. It is also conceded that the court cannot amend its records at a subsequent term upon parol testimony or matters outside of the record and that a court cannot amend its record at a subsequent term unless there be some note or memoranda in the records to show the fact from which the amendment could be made; that a fact cannot be incorporated into the record upon what the judge or other person remembers or upon ex parte affidavits or upon testimony taken after the term has expired; that the court cannot make an order at a subsequent term which it might or ought to have made before, even by nunc pro tunc order; that in the exercise of the power of the court to amend its records the action of the court must be based on the minutes or other entries or on some papers or files in the case and not upon the judge's recollection of what took place or upon outside evidence."
It is unnecessary to cite the cases which with great unanimity hold that oral testimony is inadmissible for such purpose. But the State contends that "there was ample and adequate record evidence in the form of the minutes of the court and the pencil memoranda of the clerk in the case to show the error and to authorize the court to order the correction."
We have carefully read the evidence offered upon the plea of former jeopardy and have failed to find that any pencil memorandum of the clerk of the court was offered in evidence. The question for determination then is, whether or not the entry at page 131 of the minutes of the March Term, 1928, "Jury selected. ____ Sworn and Qualified. Then Prosecuting Attorney enters a Nolle Pros." was sufficient to authorize the court, at a subsequent term by nunc pro tunc order, to correct the formal record entry made at the March Term, 1928, showing that the jury was then sworn to try the issues in the case and a true verdict render. If the language of the minute was inconsistent with the record entry and showed that a different order was in fact made and that the jury, although selected, was in fact not sworn to try the issues, the nunc pro tunc amendment of the record of the March Term, 1928, would have been authorized. [Hansbrough v. Fudge, 80 Mo. 307; Hyde v. Curling, 10 Mo. 359, l.c. 363; Saxton v. Smith, 50 Mo. 490; Burton v. Burton, 288 Mo. 531, l.c. 538, 232 S.W. 476.]
In Saxton v. Smith, supra, it was said:
"But after the end of the term at which a final judgment is rendered no entry can be made altering the form of the judgment unless the facts appear of record, or on the minutes or the dockets of the court, or from the papers on file, to authorize such change. Such entries cannot be made from outside evidence, or from facts existing alone in the breast of the judge, after the end of the term at which the final judgment was rendered."
Now, does the entry in the minute book for the March Term, 1928, show that the jury was merely selected and was not sworn to try the issues? We think not. The first statement of the minute is, "Jury selected." These words were followed by a period. In an ordinary trial a jury is "selected" by bringing before the court the requisite number of veniremen, swearing them to answer questions touching their qualifications to sit as jurors and try the issues, examining them as to such qualifications and challenging for cause those veniremen deemed by the parties to be disqualified. The twelve veniremen left on the panel after the allowable peremptory challenges have been made by the parties then constitute the trial jury. The jury has then been "selected." It is not qualified to try the issues until its members have taken a further oath or have been affirmed well and truly to try the issues joined and a true verdict render. That the jury at the March Term, 1928, was thus qualified appears to be the fair and natural construction of the language "Sworn Qualified." The clerk apparently intended the minute to have such construction, for in writing up her record from such minute she showed that the jury was in fact sworn to try the issues and a true verdict render. If she did not so intend and actually forgot that the jury had not been sworn, if it was not, she followed what we deem to be the fair and natural construction to be placed upon the words used by her in the entry made in the minute book. It is clear beyond any doubt that the entry in the minute book is not inconsistent with the formal record entry showing that the jury was sworn to try issues at the March Term, 1928.
It may well be that the jury was not actually sworn to try the case and that the record entry did not truly recite what actually occurred immediately prior to the entering of the nolle prosequi by the prosecuting attorney and that the truth of the matter lies in the version given in the statement of the trial judge and the oral testimony of the prosecuting attorney, sheriff or other witnesses. But the rule is well established that a judgment of a court cannot be set aside at a subsequent term upon the memory of the trial judge or upon the testimony of witnesses, no matter how credible or how great in number such witnesses may be. Solemn judgments and orders of courts cannot be permitted to be subject to disturbance or impeachment upon the mere recollection of witnesses. It is better that hardships be inflicted in a particular case than that judgments be exposed to and endangered by the oral testimony of witnesses who might not always be as truthful and disinterested as in the case at bar.
We must therefore rule that there was here no written memorandum of the trial judge, minute of the clerk, file or other paper in the case authorizing the amendment of the record nunc pro tunc so as to show that at the March Term, 1928, the nolle prosequi was entered and the defendant was discharged after the jury was selected, but before it had been sworn to try the issues in the case.
As the record shows that at a prior term of a court of competent jurisdiction and upon a good and sufficient information, defendant was put upon his trial for the identical offense, that the jury was then sworn to sit in judgment upon the issues of fact concerning his guilt or innocence of the identical crime of which he was subsequently convicted, we must hold that he was improperly put in jeopardy a second time.
The State urges that defendant's plea of former jeopardy was not established because it was not shown that he was the same person charged in an information and tried at the March Term, 1928. The cases cited are those where proof was manifestly required to show either that the defendants in those Identity. cases were the same or the crimes charged were identical. We have carefully compared the two informations here involved and find them to be identical in all material respects. The names of the defendant and the prosecuting witness, the date of the alleged offense, the place where it was alleged to have been committed and the means by which the alleged abortion was accomplished are set out in identical language in both informations. The one last filed and upon which defendant was convicted is apparently an exact copy of the first one, except for slight differences in most unimportant details. From the circumstance that the name "Francis M. Mason" appears in both informations as the name of the defendant, an inference of fact arises that they are one and the same person (22 C.J. 92, sec. 32; State v. Court, 225 Mo. 609, l.c. 615, 125 S.W. 451) and defendant was not required to produce further evidence of the identity of the persons charged in the two informations.
Aside from this, the fact that defendant was the person charged in the first information was effectually conceded by the State in its motion for the order nunc pro tunc when it asked that the record of the March Term. 1928, showing "that the defendant, Francis M. Mason, was put upon his trial," etc., be corrected nunc pro tunc. The trial court could not possibly have overruled the plea of former jeopardy on the ground of the failure of proof as to defendant's identity.
In the view we take that the record conclusively shows that defendant was put in jeopardy at the March Term, 1928, he could not legally be tried again and be convicted in the trial which we are here reviewing. It, therefore, becomes unnecessary to consider other assignments of error made in the briefs.
The judgment is reversed and the defendant is discharged. All concur.