
    No. 7091.
    The State ex rel. Ogden, Attorney General, vs. Judge Sixth Judicial District.
    Even after an appeal in a criminal case has been taken, the State may by a manclamus compel the lower judge to so amend and correct omissions in the minutes of the court, as to make them evidence facts admitted, or proven to have transpired during the course of the trial; as for example, to show that the defendant was present at his trial, and conviction.
    ^ PPLICATION for a mandamus.
    
      J. H. Mase for relator.
    
      S. D. JUllis for respondent.
   The opinion of the court was delivered by.

DeBlanc, J.

At a regular term of the Sixth District Court, held in the parish of Tangipahoa, one George Carroll was indicted for and convicted of murder. In obedience to the verdict, he was sentenced to death, and — from said verdict and sentence — took an appeal now pending in this .court.

Acting under the mistaken impression that, on the hearing of a rule taken by the District Attorney upon the already condemned convict, the honorable William Duncan, the judge of the court before which Carroll was tried, had refused to correct clerical errors and omissions conclusively proven to have occurred during the trial, and which exist in the minutes of said court, the Attorney General applied for and obtained from this tribunal an order addressed to the district judge, calling on him to show cause why he should not comply with the application of the State attorney and correct said pretended errors and omissions.

In his answer, the judge admits that a rule was taken on the sentenced prisoner, and when — since the sentence — his court had twice adjourned sine die. notifying said prisoner to show cause why the minutes kept at his trial should not be corrected and altered so as to prove that he was present at his trial and conviction; but he says that— on the hearing of said rule — no testimony was offered or brought before fhim, in his official capacity, either by affidavit taken ex parte, or in any other manner; and that, if any such was filed with the district attorney’s •application, he has never seen it or heard of it, and that none ever was produced before him as a judge, or otherwise.

The rule was excepted to by the prisoner’s counsel, the exception •taken up and argued, and considering — he avers — that the case of the State against Carroll had passed from and beyond his jurisdiction, and that he is now without power to alter the record of the trial, the judge— •on this and on other grounds suggested in the prisoner’s exception, dismissed the rule taken by the district attorney.

In this proceeding, the only parties are the Attorney General and the district judge — and the only documents placed before us are the former’s application and the latter’s answer. That uncontradicted •answer contains the assertion that, on the trial of the dismissed rule, no evidence was introduced to prove the existence of the pretended errors •and omissions, and — under these circumstances — the judge’s decision was legal and proper.

There is no doubt that, as soon as the jurisdiction of the appellate •court attaches, that of the lower court is superseded; but it is not so •absolutely superseded that it cannot — after due notice to and in presence of the interested parties and their counsel — correct an erroneous entry, supply an important omission, and — on legal, sufficient and incontrovertible evidence — so amend its minutes as to make them correspond with facts admitted or proven to have transpired during the course of •any trial.

Were it otherwise, after the filing of the bond and the issuance of ?the citation of appeal, the lower court would be divested of even the Indispensable and conceded authority which it has ever, exercised, of •taking every necessary step to secure the transmission to this tribunal of a correct and complete record.

The rule filed by the district attorney is referred to, but it is not before us. In substance — according to the judge’s answer, it is similar vto that filed by the Attorney General, and — in both — what is asked? Not an adjudication on any point raised and not decided during the ¡trial — not any addition to or reduction of any previous order or ruling, 'but — exclusively—that the omitted evidence of facts which transpired between the prisoner’s arraignment and the sentence pronounced against .him, and which the clerk failed to mention in the minutes, be now inter•calated where it should have been inscribed during the progress of the •.trial.

The correction now asked in behalf of the State, may — hereafter—• be asked in the name of a convicted prisoner, as a protection to a real and imperiled right, to reinstate the omitted elements of a legitimate ■defence; and — in the interest of sentenced convicts, the State and justice, such corrections should be allowed; but — as already said — on legal, sufficient and incontrovertible evidence that the alleged errors and omissions have occurred.

As — in this case — no evidence was offered to sustain the district attorney’s application, the rule issued by this court on the 6th of December 1878, is discharged at the costs of relator.

Ok Rehearing.

When we said — in the opinion delivered on the 30th of December— that the rule filed by the district attorney was not before us, we meant —and it was a fact — that it did not accompany the transcript, and not— as erroneously supposed by the assistant prosecutor — that we could not have properly considered the same in passing upon the application evidenced by that rule. We looked for it after the submission of the case, but — when we did — it was not in the office of the clerk of this court, and this induced the remark made in the opinion, that thé only documents placed before us were the relator’s application for a mandamus and the judge’s answer to the application.

To the rule taken by the district attorney is attached a copy of the judge’s decision, and these two documents, which we saw and read for the first time, only after we had rendered our previous decree, and since the filing of the assistant prosecutor’s application for a rehearing, conclusively show that the rule to correct the minutes was discharged— not,- as we inferred from the judge’s answer, “ because no testimony was offered or brought before him, in his official capacity, either by affidavit taken ex parte, or in any other manner,” but for another, a different reason, and that is — in the words of the exception which he sustained— that, as to the matters embraced in the rule, his court is absolutely without jurisdiction.

We have said, and our opinion has not changed — that the judge has, and that he should exercise the power to correct the erroneous entries made, or supply those which are shown to have been improperly or inadvertently omitted on the minutes of the court over which he presides. This, it is his duty to .do, on application of the officer representing the State, the prisoner’s counsel, or any litigant, after due notice to the interested parties, and — dn criminal eases — in presence of the accused or convict. In so doing, a judge does not alter, he perfects or completes the defective or incomplete record of the trial — he does not resume jurisdiction of any branch of the cause which has passed beyond the limits of his jurisdiction, he merely takes an authorized step to transmit to this court a true and correct record.

20 A. 580, 581, 582 — High’s Extraordinary Legal Remedies, p. 186, No. 245. H. D. — old ed. p. 73, No. 8.

In this instance, the writ of certiorari would have been inadequate, and believing — as we do — that the judge had jurisdiction, .and should have entertained the district attorney’s application,

It is ordered that our former decree is set aside, the mandamus issued by this court on the 6th of December 1878 made iieremptory, and that the judge of the Sixth District of the State take cognizance of, fix for trial, hear and determine the rule filed in his court, by the district attorney of said district, in the case entitled “ State of Louisiana vs. George Carrqll et ais.,” and that he pay the costs of this proceeding.  