Opinion
No. 29873.
June 6, 1932.
1. INDICTMENT AND INFORMATION.
Amendment to indictment must be by order of court which must precisely specify amendment, and order must be spread on minutes (Code 1930, sections 724, 1290).
2. INDICTMENT AND INFORMATION.
When order permitting amendment of indictment is made, it is unnecessary that trial be suspended until clerk records order on minutes (Code 1930, sections 724, 1290).
3. CRIMINAL LAW.
Supreme Court must presume that clerk duly and seasonably entered all orders required to be entered, absent express showing to contrary.
4. CRIMINAL LAW.
When clerk certifies orders as part of record, Supreme Court must presume, absent showing to contrary, that he copied orders as they appear on minutes.
APPEAL from the Circuit Court of Leake County.
W.T. Weir, of Walnut Grove, for appellant.
In order for an amendment to be made to an indictment there must be a previous order of the court and that order must be spread on the minutes.
While an order of the court appears in the record yet it nowhere is shown to have been signed by the judge nor does it show that it was ever spread on the minutes of the court.
Shurley v. State, 90 Miss. 415, 43 So. 299; Davis v. State, 150 Miss. 797, 117 So. 116.
In the case at bar there is nothing but the stenographer's notes to show that there was any order of the court and the stenographer's notes in this case failed to show that the order was spread on the minutes.
Crane v. State, 157 Miss. 548, 128 So. 579; Oliver v. Miles, 110 So. 666, 144 Miss. 852.
The order must be entered upon the minutes and the court can only speak through its minutes.
Adams v. State, 152 Miss. 220; Lackey v. Railroad, 102 Miss. 339, 59 So. 97.
Herbert Nunnery, Special Agent, for the state.
The indictment in this case was amended so as to include name of the trustee representing the bankrupt court, and it is the contention of appellee that the court took the correct view in allowing the amendment.
Louis v. State, 85 Miss. 35; Clinton v. State (Miss.), Cause No. 29904.
It is the law that an amendment to an indictment must be by order of the court which must precisely specify the amendment and the order must be spread on the minutes. Sections 1290 and 724, Code 1930; Shurley v. State, 90 Miss. 415, 43 So. 299; Davis v. State, 150 Miss. 797, 117 So. 116; Crane v. State, 157 Miss. 548, 556, 128 So. 579. It is not required, however, that, when such an order is made, the trial shall be suspended and the court remain at rest while and until the clerk shall record the order on the minutes. We are not called upon in this case to decide the point as to when exactly the order must be entered on the minutes, because the contention made by the appellant is that the trial was not halted when the order for the amendment was made, and that, so far as the record shows, the order was not entered upon the minutes at all or at any time.
The order allowing the amendment of the indictment, and which order specifies precisely the amendment made, is found at the opening of the record following the copy of the original indictment. It is true the clerk does not note the minute book and page thereof from which the order is copied; but, when we turn towards the close of the record, we find that similarly the final judgment of the court does not show the minute book and page from which taken. Indeed, the fact is that, in the greater number of records coming to this court, the clerk does not note the minute book and page from which he copies the orders inserted by him as a part of the record. It is not required by the rules that such notation shall be made, and, in the absence of a direct and express showing to the contrary, we must presume that the clerk duly and seasonably entered all orders required to be entered, and that, when he certifies here orders of the court as part of the record, he has copied those orders from the minutes and as they appear on the minutes.
The other points made by appellant have been examined; and we are of opinion that, as to the exact facts of this case, they do not furnish grounds for reversal.
Affirmed.