
    The State v. Benito Alverez.
    The clerk of a court, fro -which a criminal cause is removed fot trial, should endorse on the indictment and other papers received by him from the court, where the indictment was found, that he filed them. Yet where he failed to do so, and the prisoner was put upon trial, but before verdict, amotion was made to endorse the papers nunc pro tunc, it was held: That the court had the custody of the p apers, and it was its duty to grant the motion.
    Objection to 'the pannel or polls cannot be taken advantage of, if not made by challenge, when the jury or jurors are presented to the prisoner on trial. He cannot take the chance of a verdict in his favor, by a jury of his choice, and afterwards object to that jury.
    The newly discovered evidence, which entitles a party to a new trial, is such as ought to produce, on another trial, a different result on the merits.
    APPEAL from the .District Court of the Seventh J udicial District, Stirling, J.
    
      Lyons, for the State.
    
      James H. Muse, for the accused.
   By the court:

Preston, J.

The prisoner having been prosecuted, tried and convicted of murder, and sentenced to imprisonment at hard labor in the penitentiary for life, has appealed. He was indicted, arraigned and plead in the parish of East Feliciana, the homicide having been perpetrated in that parish.

Under the 115th article of the Constitution, authorizing a change of venue, and the Act of the 1st of June, 1846, to carry it into effect, the accused made the necessary allegations and proof, and obtained an order that the case should be transferred to and tried in the parish of West Feliciana. The clerk of the district court of the parish of East Feliciana transmitted the papers and copies of the proceedings, to the clerk of the court of the parish of West Feliciana, as required by the statute, aud the sheriff of the one, delivered the prisoner to the sheriff of the other parish.

The 13th section of the Act of 1846 provides, “ that the clerk of the court to which any criminal cause shall be removed, shall, on receipt of the indictment and other papers, enter the cause on the criminal docket of his court, and the said cause shall be heard, tried and determined by the court, by preference, in the same manner as if the proceedings had originally been instituted therein,” p. 109.

The case must have been entered on the criminal docket of the court, for an order was made in the case by its title, “ The State of Louisiana v. Beneto Alverez,” directing a jury to be summoned for the trial, and the list of that jury was served upon the prisoner on the 10th of December, 1851, by the sheriff of West Feliciana. And on the 18th day of the month it appears, by an entry in the case, that the prisoner was brought by the sheriff to the bar of the court, on the charge, and declared himself ready for trial, and was put upon his trial before a jury. But, before they rendered their verdict, it was discovered that, from some oversight, the clerk of the district court of West Feliciana had not endorsed on the papers sent from the parish of East Feliciana, that they were filed, though they were clearly in his possession and keeping as clerk, and were used on the trial.

The law did not expressly declare that they should be filed, though it was undoubtedly proper that it should have been done. Therefore the court, as soon as the omission was discovered, on motion of the district attorney, and in the presence of the prisoner and jury,'on the 19th of December, 1851, ordered them to be filed as of the 9th of December, nunc pro tunc. The court had the control of the records, and it was its duty to order this to be done for their safety and authenticity. The failure to file the record and documents was a mere omission, and the judge, without causing injury to any one, directed that which was proper to have been done some days before, to be done, when the omission was noticed. This so frequently occurs in practice, from unintentional oversight, that the phrase nunc pro tunc is familiarly known as a law term, which is used on such occasions to express, that a thing is done at one time which ought to have been performed at another. The only qualification in relation to it, in judicial proceedings, are, that it ought to be done; that it be done by the leave or order of the court, perhaps in the presence of the parties interested, and that it be done to answer the purposes of justice, and not to do injustice.

No injustice was done in the present case. It was not, as contended, the filing of the documents, that gave the court in West Feliciana the jurisdiction of the case, and the jury power to try the prisoner. His successful motion to change the venue for the trial of an indictment found against him for murder, from East to West Feliciana; the delivery of his person by the sheriff of one parish, to the sheriff of the other, for trial; and the transmission of all the proceedings against him from one clerk to the qther, were the things which gave jurisdiction to the court that tried him, and power to the jury to pass upon his case and acquit or convict. The filing of the papers was a mere form which, without any possible injury to the prisoner, was complied with as soon as it was discovered that it had not been seasonably done.

Similar omissions have, no doubt, often occurred in judicial proceedings in criminfil cases and been corrected in the same manner, and yet we have no precedent, that the correction has been regarded as objectionable by any tribunal. The objection must be supported by authority or fail, for it is intrinsically without any substantial foundation.

The motion in arrest of judgment, based upon this important matter, cannot therefore, prevail.

Nor can the judgment be arrested on account of the charge of the court in relation to it. It was immaterial to the power to try the prisoner; immaterial to his guilt or innocence, as to which; a proper issue between him and the State was presented, in a proper manner, and before a competent tribunal. And, therefore, the charge of the court, that the juiy had nothing to do with the oversight in not filing the papers, and the correction of the omission, was correct; and even if the judge illustrated his opinion by an erroneous view, as to defects in an indictment, it cannot make that material in the case, which was intrinsically immaterial.

Three of the jurymen, who were on the list served upon the prisoner to pass upon his trial, were excused, one on account of age, and two as being school directors. A pannel of forty-eight was provided by law, and summoned in the case, for the express purpose of insuring a speedy trial, and that the case might not be continued in consequence of a deficiency of jurymen from any cause. The prisoner made no objection to the pannel, and did not ask for a continuance of the case. In this respect, the case is entirely different from that of The State v. Howell, in which a continuance of the case was prayed for, on account of such a disparity between the list served upon him, and the number summoned for the trial, as might have operated greatinjustice, and, in effect, have destroyed the beneficent provision of law, that he should be served two days before the trial, with the list of the jury summoned to try him. State v. Howell, 3 Ann. 51.

We have often held, that objection to the pannel or polls, cannot be taken advantage of, if not made by challenge when the jury or jurors are presented to the prisoner for trial. He cannot take the chance of a verdict in his favor, by a jury of his choice, and afterwards object to the jury when the verdict is rendered against him.

The testimony of White, discovered since the trial, was cumulative alone. It may be reconciled with the testimony on behalf of the State. And we concur with the district judge, who has stated it in connection with the evidence of the State, that it ought not to have changed the verdict. It is laid down as an elementary rule by Wharton, 664, that in order to grant a new trial on account of newly discovered evidence, it must be such as ought to produce, on another trial, an opposite result on the merits : and several authorities are cited in support of this principle. We substantially recognized it in the case of The State v. Brette, 6 Ann. At all events, we would not interfere with the discretion of the district court in refusing a new trial, because testimony, merely cumulative, might be produced. The authorities are numerous in support of the ruling of the district court. Whart. Crim. Law. 661. 1 Story, 218. 1 Sumner, 482.

The counsel contends, that facts stated by the judge assimilates the case to the facts proved on Selfridge’s trial, and that we have approved the principles of law laid down in that case, and therefore infers that the result should be the same. We have approved those principles, but doubted their application to that case, and think they have no application to the case under consideration.

The judgment of the district court is affirmed, with costs.

Application for a re-hearing refused  