
    The State vs. Harrison.
    Nashville,
    December, 1837.
    Where an indictment is lost, the court during the term has power to Supply it by mating a copy a part of the records, provided the judge of his own knowledge or recollection knows it to be a literal'copy.
    The entry, making a copy of a bill of indictment a part of the record, must show that the judge was satisfied from his own recollection that it was a true copy and that the original was lost.
    The defendant was indicted at the January term, 1838, in the circuit court of Davidson, for a rape, alleged to have been Committed on the body of Patsy Mayo. The defendant pleaded “not guilty.” The cause was taken up for trial, and á jury empannelled and sworn to try it, at the same term. The bill of indictment was read to the jury, and the prisoner thereon convicted. The prisoner then filed reasons in arrest of judgment, the principal of which were, that there was no bill of indictment upon record against him.
    Upon examination it appeared, that the bill of indictment Was lost or mislaid during the trial, and upon diligent search for the same it could not be found.
    The solicitor thereupon moved the court to make a copy of the indictment, together with the affidavits annexed, a part of the cause. The affidavits were as follows:
    John Trimble, Attorney General, &e. makes oath, (hat aí tbe January term of tbe circuit court of Davidson county, 1838, sitting at Nashville, be drew up a bill against Harrison for a rape against Patsy Mayo, that tbe above is, as be believes, an exact verbatim et literatim copy of the said original bill of indictment. He believes so because his attention was drawn to it, being the first indictment he had ever drawn for a rape. He distinctly remembers having drawn it from a form in Davis’ Precedents, No. 297, and was struck with its simplicity and conciseness. He took the names of William G. Harrison and Patsy Mayo from the warrant now on file in court, also the date at which it is alleged to have been committed, and has compared the above copy with the form in Davis’ Precedents, and the names of the parties and the date of said crime with the warrant, and find them correspond, and that the said original indictment was read to the jury which tried said cause, and was sentby him to the grand jury before said trial and was returned endorsed, <£a true bill;” “Francis McGavock, Foreman,” and that Henry Tucker’s name was endorsed by me, “Henry Tucker, prosecutor,” on said original bill.
    JOHN TRIMBLE.
    Sworn to in open court, 15th February, 1838.
    R. B. TURNER, Clerk.
    Robert B. Turner, clerk of the circuit court of Davidson county, maketh oath, that at the January term, 1838, of said court, he administered an oath to Patsy Mayo and Joseph L. Ryan, to go before the grand jury as witnesses in the case of1 the State of Tennessee against William G. Harrison, and that the names of said witnesses were endorsed on the bill against said Harrison, and also the fact that they were sworn in open court, and signed by him as clerk, &c.; also that Henry Tucker, prosecutor, was also endorsed on said bill as prosecutor, that said bill so endorsed was returned into court by the grand jury endorsed, “a true bill,” “Francis McGavock, Foreman.” That on said indictment he arraigned said Win. G. Harrison, and that tbe same was used in the progress of said trial, that the last time he saw said bill of indictment, it was lying on the bar about fifteen minutes before the concluding speech in said cause was finished, that when the said ar-g-ument was finished, and the iudge was about to charge the P J ° 0 jury, he called for said bill of indictment, but it was gone, that he has made most diligent search for the same, but without success; also states that the above copy of the indictment is the same as the original upon vi bich said Harrison was arraigned. R. B. TÜRNER.
    Sworn to before me in open court, this 15th February, 1838. JAMES RUCKS.
    “Francis McGavock, foreman of the grand jury at the January term, 1838, of the circuit court of Davidson county, makes cath, that the indictment against William G. Harrison for a rape upon Patsy Mayo, was returned into open court by the grand jury, and was signed a true bill, Francis Mc-Gavock, foreman, of the grand jury, and he believes is the same as the above copy of the indictment against William G. Harrison. .
    FRANCIS M’GAVOCK.
    Sworn to in open court, 15th February, 1838.
    R. B. TURNER, Clerk.
    “Edwin H, Ewing, one of the counsel who prosecuted for the State in the case of Wm. G, Harrison, mentioned in the affidavits of John Trimble, Robert B. Turner and Francis McGavock, makes oath, that he examined the indictment in said case, particularly, with a view to any motion that might be made in arrest of judgment; he has also examined the copy or professed copy of said indictment, and the endorsements thereon on the other half of this sheet written. Affiant does not recollect particularly in regard of the formal parts of the indictment, but believes them to have been in this respect as usual in regard to the substantial and material allegations; he recollects them to have been, and in fact has no doubt that they vyere as stated in the copy referred to. The endorsement of “Francis McGavock, foreman,” was also upon it, signed “a true bill.” EDWIN. H. EWING.
    Sworn to in open court, 15th February, 1838.
    R. B. TURNER.”
    Afjer examining the alleged copy of the indictment and the affidavits, the court ordered the following entry to be made a part of the record:
    
      
      11 State vs. Win. G. Harrison. The Attorney J ¡appeared in open court and moved the court that the follow--ing copy of thé indictment in this case and the affidavits annexed, be made a part of the record in said cause, whereupon the court upon examination and inspéction of the same, orders the same to be spread upon the minutes and made a part of the record in this cause.” The copy of the indictment and the affidavits before referred to, were also inserted in the éntry.
    The court afterwards arrested the judgment, upon which occasion a bill of exceptions was sealed by the court. In the bill of exceptions the judge recited that the copy of the indictment was filed upon record by him, not merely from the affidavits but because the court “was fully satisfied that said copy of said indictment so ordered and made part of the record, was an exact literal copy of the original indictment, not only from the affidavits appended to said copy, but from the recollection and memory of the court itself.
    Previous to arresting the judgment, amotion was also made for a new trial, which was overruled. The bill of exceptions taken upon overruling the motion for a newjrial, presented several question, which, however, it is unnecessary to notice, as the opinion of the court was based wholly upon the entry supplying the loss of the indictment and making a copy a part of the record.
    
      Geo. S. Yerger, Atty. Gen. and E. H. Eioing, for the State,
    contended that when an indictment or any part of the proceedings were lost or stolen, or altered or defaced, the court could so amend the record as to let it appear what it originally was, and when an indictment was lost, the court could during the term supply the deficiency by a copy. They cited 1 Ch. Cr. Law, 722, 754: 2 Ld. Ray. 1067: 1 do. 695, 565: 2 Yin. Ab. 312, 313: PCaine’s Rep. 104: Lilly Entries, 523: Andrews’ Rep. 13: Barnes’ Rep. 14: 1 Strange, 141: 2 do. 1077, 1246: 1 Salkeld, 47, 53: 22 Com. Law. Rep. 226: Blackmore’s case, 4 Coke’s Rep. 452.
    
      W. Thompson and J. T. Holman, for defendant.
    We contend the iudgment was rightly arrested, because of the JO ° J' of the indictment. See 2 Chitt. Black. 288: 1 Comyn’s tj{je ameD(jmentI 577, letter a: do. 583 d: 578, b: 609', y. 513 an(] note: 6 Mod. 281: Cro. Car. 144: 1 Stark. Ev. 136, top page: 1 Saund. 250, top: 1 Comyn’s Dig. 592, in note: 4 Coke’s R. Blackmore’s case, 452. At bottom of page 460, (top page,) it is said supplying a stolen or defaced record, is amending the record, and can only be done where there is something in the record to amend by, or where' there is an exemplication of the record.
    The Attorney general says that this is not a question of amendment, but soon commences reading cases where amendments have been allowed, and most of them governed by the English statutes of amendments, being civil cases, and they almost uniformly speak of amending by other parts of the re cord, by the paper books, by the assaciate notes, &c.
   Turley J.

delivered the opinion of the court.

The power of courts to amend and supply their records when they have been left imperfect by the misprison of the clerk, or have been destroyed, either by accident or design, cannot be disputed; its existence is essential to a correct administration of- justice. It is, however, a very delicate power, and might be subject to much abuse, especially in criminal cases, if the extent to which it might be carried was not well defined and properly checked by law. This we think is done. It has been coirectly observed, that the judge during the term is a living record, and therefore during that period of time, he may alter and supply from his own memory, any order, judgment and decree which has been pronounced, and this because having made then himself, he is presumed to retain them in his recollection. But by the provisions of the common law, after the term had elapsed, the judge had no such power, because it was supposed that there would be a period at which a judge would cease to retain in his memory the things which had been ordered and adjudged, and that period it was well conceived might be the end of the term, as he would then be apt to dismiss from his thoughts the things which had been previously passing in them. But it being ascertained by experience, that misprison of clerks were •* ^ a frequently made which were not discovered daring term time, and .therefore could not be corrected, as a remedy for which the statutes of 14th Ed. 3d Gh. 6th and 8th Hn. 6 c 45, were passed, greatly enlarging the powers of the courts upon this subject, the general provision of which need not be examined, as it is admitted that they do not apply to the case under consideration. It may not however be amiss to observe that it is held in Arthur Bíackmore’s rase, 4Rep. 156 a. thatal-though the 8th of Hen. VI. authorises an amendment of the record, where any part of it has been stolen, carried away, withdrawn or avoided, yet the part thus lost cannot be thus supplied, unless it can be done by other parts of the record or by an exemplification of the record. This decision it is said is not applicable to the present case, because the record has not been supplied under the provisions of this statute, but under the provisions of the common law, which it is urged permitted records to be supplied in all cases from the memory of the judge, without requiring it to.be done by other parts of the record, or by any exemplification thereof, provided this be •done at the term at which the accident happened. This 'brings us directly to the enquiry of what powers the court can exercise on this subject.

We have said 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 every thing is in fieri that is not unalterably fixed and determined by its adjournment. This principle doubtless applies with more force to things which have emenated from the court itself, because the judge may well recollect what he has himself directed to be done, and find it impossible to remember what has been done by others. This is peculiarly applicable to bills of indictment, which are drawn by the attorney general without consultation with the court, and acted upon by the grand jury, not under the immediate inspection of the court until the offender is arraigned for trial, and then in such a cursory way as to render it difficult for him to supply their Joss from memory. No judge would rashly undertake soto Jo. It is not so done in this case, The entry is in the words . • J “The attorney general appeared in open court and moved the court to make the following alleged copy of the indictment and affidavits a part of the record in said case, whereupon the court upon an examination and inspection of the same, ordered the same to be spread upon the minutes of the court and madea partof the record of the cause.” There is nothing here showing that this was done upon the recollection and memory of the judge. But it is said that this appears in another part of the record, to wit, a bill of exceptions taken to the opinion of the court sustaining the motion in arrest of judgment. It is true, it is there stated by way of recital, that the court considered the reasons assigned in arrest were good and sufficient, notwithstanding the court was fully satisfied that the copy of the bill of indictment ordered to be made a part of the record, was an exact literal copy of the original, not only from the affidavits appended thereto but from the memory and recollection of the court itself.

If the indictment could be supplied from the memory of the judges, the records must show explicitly and with cei;-. tainty that it was so done. This recital in. th.e bill of exceptions does not amount to this. To establish the principle that a judge might supply a lost bill of indictment upon the affidavits of others, independent of his owu recollection, would', as we think, be exceedingly dangerous to the lives and libei ty of the citizens, and we cannot do so. We think we go far enough in saying that this may be done upon the memory of the judge. Furthermore, before a record can be supplied by the court, there must in our opinion be an adjudging by the court, that the original is lost. There is nothing in this record showing that there was such a judgment of the court pronounced, and we have no evidence that the original bill of indictment is not in existence, save the affidavit of the clerk, yffiich we think is not sufficient to warrant us in passing sentence on the prisoner upon a copy of the bill of indictment spread upon the records in the court below. We therefore affirm the judgment of the inferior court, and commit the prisoner for a new prosecution.

Judgment affirmed.  