Knefel v. People

Mr. Justice Hand delivered the opinion of the court: This is a writ of error sued out of this court to the criminal court of Cook county, for the purpose of reviewing the action of that court in the case of The People of the State of Illinois v. Paul F. Knefel, No. 46,575, in entering an order in said cause on the 29th day of September, 1899, amending the record in said cause nune pro tunc as of May 22,1897, so as to make the same show that the order entered in said cause on said last named day for a new trial was sustained and not overruled. “The power of courts, whether of law or equity, to make entries of judgment or decrees nunc pro tunc in proper cases and in furtherance of the interests of justice, is one which has been recognized and exercised from ancient times and as a part of their common law jurisdiction. This power, therefore, does not depend upon statute—it is inherent. It rests partly upon the right and duty of the courts to do entire justice to every suitor, and partly upon their control over their own records and authority to make them speak the truth.” 1 Black on Judgments, sec. 126. The law is well settled that a court is powerless to amend its final judgment and thereby correct judicial errors after the term at which it was rendered. It may, however, thereafter, upon notice to parties in interest, by order entered nunc pro tunc, amend or correct such judgment, when, by reason of a clerical misprision, it does not speak the truth. Freeman on Judgments, chap. 4; Church v. English, 81 Ill. 442; Becker v. Sauter, 89 id. 596; Tucker v. Hamilton, 108 id. 464. The plaintiff in error contends that under the law of this State no power exists in a criminal case to amend the record for a misprision of the clerk of the court except during the term of the court at which the same is made. We cannot accede to this proposition. In the case of Kennedy v. People, 44 Ill. 283, the clerk, in writing the record showing the return of the indictment into court, made a mistake in the title of the offense with which the defendant was charged. The court say: “If such a mistake was made the court below has the power to permit the record to be amended upon a proper, application by the People.” In Phillips v. People, 88 Ill. 160, the record showed a plea of not guilty, when, as a matter of fact, no such plea had been entered. A trial and conviction upon such record were had and the judgment was set aside because of the want, as a matter of fact, of such plea. The court below, on motion of the State’s attorney, at a subsequent term ordered the record amended by striking out the plea of not guilty. In Gore v. People, 162 Ill. 259, a similar motion was granted and an amendment nunc pro tunc allowed in the court below at a subsequent term after the return of the indictment and after the suggestion of a diminution of the record in this court. These cases clearly establish that a clerical érror in the record may be corrected at a term subsequent to the term when the same is made, in a criminal case. It is next insisted that even though the court has power to allow the record to be amended or corrected, such correction cannot be made after the term from the memoranda of the court’s qrders made in the clerk’s minutes at the time. That such correction maybe made after the expiration of the term already appears by the decisions heretofore referred to. The language used by the court in these cases seems sufficiently general to include memoranda of the transactions or minutes of the clerk made at the time, under the direction and in the presence of the court. In the case of Gore v. People, supra, the court say: “The record may also be amended whenever there is any memorandum or record by which to amend. ” In May v. People, 92 Ill. 343, this court, in approving of the amendment, quoted from 1 Bishop on Criminal Procedure, (sec. 1160,) which reads: “Neither, it has been held, can the clerk, at a subsequent term, make an entry of what truly transpired at the preceding term. But this refers to the power of the clerk proceeding of his own motion. The court may order nunc pro tunc entries, as they are called, made to supply some omission in the entry of what was done at the preceding term; yet this is a power the extent of which is limited and not easily defined. In general, mere clerical errors may be amended in this way.” In Church v. English, 81 Ill. 442, the court said: “Whether it is a misprision of the clerk or a malfeasance, the court has power at all times, upon notice given, to reform its records so as to make them speak the truth. * * * No reason suggests itself why such amendments may not be made at any time, so long as anything definite and certain remains to amend by.” It was therefore competent for the court to examine the minute book, journal and docket of the clerk of the criminal court, and hear the evidence of witnesses explanatory of the method in which the same were kept and the record written up therefrom, in passing upon the motion to correct the order of May 22, 1897. It is next insisted by plaintiff in error that the court had no power to correct said record after a nolle prosequi. We do not see how such order in any way limited the power of the court to make its record speak the truth. The plaintiff in error sought to make use, in the case on trial, of the record of a prior proceeding in said court as evidence in his favor. It was then brought to the attention of the court that such record did not speak the truth by reason of the clerical error or misprision of the clerk. It was manifestly proper for the court to amend its record by correcting the clerical error or misprision of the clerk complained of, so as to state the proceedings had before that time in said cause truthfully, even though the case had been nollied. The plaintiff in error and his attorney were present in court at the time the motion was made and the amendment allowed, participated in the argument and cross-examined the witnesses produced on the hearing thereof, and plaintiff in error is bound by the action of the court thereon. We find no substantial error in this record. The judgment of the criminal court of Cook county is therefore affirmed. Judgment affirmed.