
    GATES vs. THE STATE.
    To authenticate a public record by the private seal of an officer, the sealing should he by aii impression upon wax or other tenacious substance. A scrawl is not sufficient.
    APPEAL FROM BENTON CIRCUIT COURT.
    Todd for appellant insists :
    1st. The court should have sustained a motion to dismiss the case at the September term, 3848. The record does not show, the court found, a true bill was returned by the grand jury. It does not show an order of court receiving the indictment as found, a true bill. It does not order Ihe filing of the indictment, and no order appears for process upon it as a matter of record, and the indictment was not filed as a record in court.
    2nd. The record of the Moniteau oireuit.coutr of the 6th of October, ÍS48, containing a copy of that of Morgan circuit, made out or the 21A Apr ¡118-48, should have been rejected on the trial for these reasons:
    
      First. The seal of the cleric of Moniteau was not an official seal, being made with a scrawl around the initials L. ¡3. By common law no sealing was legal but with impressions on wax, or tenacious substances. See Tomlin’s L. D., title “seal,” p.441.
    
      Second. A clerk’s private seal is allowed by statute. See Rev. Code, p. 203, sec. 39, where there is no official seal. It is contemplated by statute that all official seals shall be impressions on wax or stamps on paper. See Rev. Code, p. 332, sec. 18, 19. Official seals are intended to be evidence of authentication by inspection. Our statutes allow scrawls as a substitute for sealing in private contracts only, See Rev. Code.
    3rd. It should have been rpjected for want of intrinsic evidence to prove the charge in the indictment. It fails to prove that a grand jury was empannelled or sworn at the October term, 1847, of any report from them of the presentation of this or any bill of indictment, of any order of the court filing the bill ordering a capias, or in relation thereto.
    4lh. If any such inference is deducible from acts of the court, yet in Tact, the paper is not an indictment.
    
      Firj¡t. The bill is not signed by any prosecuting attorney, if that is not necessary.
    
      Second. It is not signed by the grand jury or any foreman thereof, and there is no endorsement of a ‘‘true bill” signed by “the foreman;” and without such finding, and no record of such finding, the presumption of Jaw, always in favor of criminals, would be, it was returned ps “ignored,” or not a true bill, and all subsequent acts of the court “void absolutely,”
    
      Third. The evidence in the record of the pendency of the cause by indictment, is matter of law alone for the court, and in law exists from the time of filing the record in the Moni-teau circuit. This record does not show when it was filed in said court, other than by inference from the court acting on the case on the 25th of September, 1848. It had no tendency to prove the charge in the ipdictment of a prosecution for perjury, pending at the time of the commission of the offence, and was incompetent and irrelevant evidence.
    
      Fourth. The amended record of the Moniteau circuit court, on the 28th day of June, 1849, was illegal and incompetent evidence for these reasons:
    1. It was only evidenced by the clerk’s certificate, authenticated by a scrawl for a private seal of office, whiph is no seal. See cases under point 2.
    2. The clerk under the rule of the Benton circuit court, of March term, 1849, could not iegaliy make a record of any papers filed, or attempted to he filed in his office, in that crimi-, nal cause, the venue having been changed in Sept. 1848, ,and hiedan, ijjenton circuit court-in Oct. 1848. - • . o
    
    3. The supposed manuscript from Morgan circuit, filed’ín Moniteau, on the 26th May, 1849, was no part of the records of Moniteau; it was not filed by original suit, or an order of change of venue, on rule or certiorari from Moniteau circuit, or. in any case there pending. It was an illegal and void act to file it.
    4. The circuit court of Morgan had no authority to send a transcript to any court where the cause was not pending, and then only upon rule or certiorari: the order of the court was ex-, tra judicial and void. See statutes change of venue and 7 Mo. Rep. 206.
    5. If evidence for any purpose, it was deficient in this; that the circuit court of Morgan at October term, 1847, never adjudged that the indictment was fopnd a true bill, ordered it filed, as a record in court, or ordered a capias thereon. Rev. Code, p. 866, sec. 21.
    5th. The court erred in not giving defendant’s instruction to find him not guilty, unless 'absolute threats of injury for appearing or not testifying.
    6th. The motion to arrest should have been sustained for defects stated in the indictment,, and secondly for defect in proceedings stated in point 1st to dismiss.
    Robards, Attorney General, for the State.
    1. The courtdid right in refusing to strike the cause from the, docljet.
    2. The indictment is good.
    3. The instruction asked by the Slate, and given, contains a correct exposition of the law,, applicable to the case, and the court did right in refusing to give the second instruction asked by the defendant.
    4. The records admitted in evidence were- properly authenticated and were admissible. Digest, page 332.
    5. The transcript from Morgan to Moniteau county was filed in the latter court on the 18th June, 1848, and the offence was proven by the witness to have been committed in September, 1348, and subsequently to filing of the cause, in Moniteau county.
   Judge Birch

delivered the option of the court.

The only point, of disconcurrence between this court and the court below, has relation to the authentication of the record by the clerk of' the Moniteau circuit court, fropi whence this cause Was taken by change of venue.. As we. are net sitting to enact, but to administer, laws, it maybe sufficient to remark, that probably no judicial decision, can be found which recognises any other mode of sealing, at common law, than by an impression upon. wax or other tenacious substance, and as our o.wn legislature, which has- re-enacted the common law, has only, so far modified the ancient legal method alluded to, as to allow official seals to be impressed or stamped upon paper alone, the private sealing-of a clerk, as contemplated and permitted by the 20th section of the statute respecting courts, must needs continue to be conformed to the original legal definition, the clerk being simply permitted to use his-. “•private seal” instead of the public one, yyhich wag. unprovided. The-'5th section of tl 3 Ciaot concerning contracts and promises,” having no application in a case respecting records, the “scrawl” which was affixed to the signature of the clerk cannot be regarded as in any wise imparting the legal authentication of a record, and the reading of such a paper in evidence against the plaintiff in error, was consequently inadmissible and erroneous. The judgment of the circuit court must, therefore, be Reversed and the cause remanded.  