
    Davis v. The State.
    
      Proceedings to amend Judgment 'Nunc Pro Tunc.
    
    1. Amendment of judgment nuno pro tunc; only record or quasi record evidence considered. — A judgment entry can he amended nunc pro tunc only upon record evidence or evidence quasi of record, and deficiency in such evidence can not he supplied by parol testimony.
    2. Amendment nunc pro tunc; admissibility of evidence. — In a proceeding on a motion to amend a judgment nunc pro tunc, memorandum written on the trial docket hy the court is admissible.
    3. Amendment of judgment nunc pror tunc; sufficiency of evidence. — In a proceeding on a motion to amend a judgment nunc pro tunc -by inserting in said judgment the name of one of the jurors, which was by mistake omitted from said entry, a written memorandum on the trial docket of said court at the term at which the judgment was rendered “J. and V. are guilty of murder,” etc., is insufficient to support such motion; there being nothing in such entry to show tnat the person whose name is sought to be entered in the judgment was a member of the trial jury.
    4. Amendment of judgment nunc pro tunc; admissibility of evidence. — In a proceeding on a motion to amend a judgment nunc pro tunc by inserting the name of a juror whose name was by mistake omitted from the entry, the affidavit of the clerk of said court that said juror’s name was omitted by mistake and a list of the j.urors prepared by the clerk as a memorandum of the jury trying said cause, constituted no part of the record or quasi record of said cause, and are, therefore, not admissible in evidence
    
      Appeal. from the Circuit Court of Lowndes.
    Tried before the I-Ion. J. C. Bichaedson.
    The appellant in this case, Mose Davis, was indicted tried and convicted for murder in the first degree at the Spring term 1902 ■ of the Circuit Court of Lowndes County. In the minute entry of the judgment of conviction, after reciting the joinder of issue on the plea of not guilty, it is then stated .that “thereupon came a jury of good and lawful men, towit,” and after this there are the names of eleven jurors set out. After setting out the names of eleven persons, the judgment entry then continues as follows: “who upon their oaths do say. “We, the jury find the defendant guilty of murder in the first degree as charged in the indictment and fix his punishment at death.” There then follows the judgment of conviction. At the Fall term 1902 of the 'Circuit Court of Lowndes County, the State through its solicitor, made a motion to amend the judgment entry of the Spring term 1902 mimo pro tunc by inserting the name of the juror in said judgment entry, it being averred in the motion that the name of the juror sought to be inserted was, by mistake of the clerk, omitted from said entry. In support of this motion, the State, as movant, first offered in evidence the memorandum written in the trial docket at the Spring term 1902 of the Circuit Court of Lowndes County, which memorandum was written in said doceket after the statement of the case, and contained among others, the. following statement: “2 — 27. J. and V. are guilty of murder in the first degree; punishment fixed at death.” The defendant objected to the introduction of said memorandum in evidence upon the following grounds: 1. That said memorandum was incompetent and illegal testimony in this case. 2. Because said memorandum was not such a writing or document required by law to be made and preserved in this case and is not quasi of record. The court overruled this objection and the defendant duly excepted. The State then offered in evidence the affidavit of the clerk of said court, in which the clerk swore that the defendant in said cause was tried by twelve jurors, and twelve jurors returned the verdict of guilty, but that in entering up the minutes of the count the name of one of the jurors, designating him, was omitted and that said juror was upon the jury which returned the verdict of guilty in said case. The affiant further stated that the card attached to the affidavit was a true and correct list of the jury trying the sapl case, and said card was filled out bv the affiant as the jurymen were empannelled and took their seats. ,The card attached to the affidavit was a small pasteboard card and had written on it “Spring term 1902. Jury, Mose Davis. Murder.” And also the names of twelve persons. The name of the juror, whose name'was sought to be inserted in the judgment of conviction by amendment nunc pro tunc was upon this card. The defendant objected to the introduction in evidence of the affidavit, and also the said card, upon the grounds that such evidence was incompetent, illegal and irrelevant, and constituted no part of the record in said case, nor was it quasi of record. This motion was overruled, and the defendant duly excepted.
    Upon the introduction of all the evidence upon the motion to amend, the court rendered judgment granting-saicl motion and ordering the judgment rendered at the spring term 1902 amended nunc pro tunc as asked for in said motion. To the rendition of this judgment the defendant duly excepted.. From this judgment amending the former judgment nunc pro tunc the present appeal is prosecuted.
    W. P. McGaugh, D. K. Middleton ancíTuos. W. Marten, for appellant.
    It has been repeatedly held by this court that the statute merely follows the common law in respect of amendments nunc pro tunc, and evidence which is not admissible under the statute is not admissible under the common law and vice versa; the requirement in both cases being that such evidence must- be record or quasi record evidence. — Thompson v. Miller, 2 Stow. 470; Metcalf v. Metcalf, 19 Ala. 319; Hudson v. Hudson, 20 Ala. 36-1; Perkins v. Perkins, 27 Ala. 479'; Harris v. Martin 39 Ala. 556; Bruce v. Strickland 47 Ala. 392; Tanner v. Hays, 47 Ala. 722; Dunlap v. Horton, 49 Ala. 412; Bryan v. Streeter, 57 Ala. 104.
    
      Neither the affidavit, nor the list of jurors constituted a part of the record, and they were, therefore, inadmis-’sive in evidence.— Perkins v. Perkins, 27 Ala. 479; Hudson v. Hudson, 20 Ala. 374; Bruce v. Strickland, 47 Ala. 192.
    Chas. G. Brown, Attorney-Gei:eral, for the State.
   SHARPE, J.-

— A record entry of judgment can be amended nu.no pro tunc only upon record evidence or evidence quasi of record., — -Mayfield’s Dig. 119, § 16. Deficiencies in such evidence cannot be supplied by parol evidence. — Gunn v. Howell, 35 Ala. 144; Tanner v. Hays, 47 Ala. 722; Pryor v. Beck, 21 Ala. 393; Ex parte Gilmer, 64 Ala. 234; Hudson v. Hudson, 20 Ala. 364; Black on Judgments, § 165.

It was- proper on the trial of the State’s motion to receive as evidence the entries appearing on the trial docket. — The Governor v. Bancroft, 16 Ala. 605; Gay, Hardic & Co. v. Rogers, 109 Ala. 624. But these entries were not of themselves sufficient to support the motion, since, there was nothing in them to show J. W. Thomas was a member of the trial jury.

Neither the clerk’s affidavit nor the list purporting to contain names of jurors were records or quasi records, and, therefore, their admission was erroneous.

The judgment granting the motion to amend will be reversed, and a judgment will be here rendered overruling that motion.

Reversed and rendered.  