
    Herring v. The State of Iowa.
    Where a bill of exceptions was taken to the overruling of a motion for a new trial, which motion was embodied in the bill, and alleged that certain instructions wero given by the court, but it did not appear from the record, outside of tho motion, that any such instructions were given, Held, that the only effect of the bill of exceptions was, to show that the motion was filed and overruled, and not that the facts alleged in the motion existed, or that any such instructions wero given.
    A jury, after having retired to consider their verdict, and having been absent about four and a half hours, came into court, and stated that they could not agree on the testimony of certain witnesses. One of the witnesses was brought into court, and the court told the jury, tp examine the witness. The jury then wished to know of the witness,, whether he purchased .the liquor, for the sale of which the defendant was indicted, within the year next preceding tho indictment; the witness then repeated his evidence as near as he could, as lie said. The counsel proposed to examine the witness, which was prohibited by the court, the court ruling, that it was for the jury alone to inquire of the witness what his testimony was. The counsel for the state and for the defendant, then got into a dispute about the testimony of tho witness, whereupon the court stated to tho defendant's counsel, the state, and the jury, that the witness had before sworn, that it was within the year that the liquor was sold, and was so down on his minutes. The counsel again insisted upon interrogating the witness, which was again prohibited by the court. Held, that, from the foregoing statement, it was not apparent that the court instructed the jury upon the facts of the ■case, or that the jury was misled by what transpired. Held, also, that the refusal to allow counsel to interrogate the witness, was within the discretion of tho court, and was not good ground of error.
    An indorsement on the hack of an indictment, of the presentation and filing of the same, is itself a record, and the only record that should appear until after the arrest of the defendant; and the making of a record in the hooks of the clerk’s office, from, the indictment, does not impair the proceedings.
    
      Error to the Scott District Court.
    
    This was an indictment for retailing intoxicating liquors* -containing six counts. A demurrer to the indictment being ■overruled, tbe defendant filed bis plea of not guilty. After tbe •cause bad been submitted to tbe jury, and after they bad been absent four hours and a half, tbe jury came into court, and stated that they could not understand alike tbe testimony of tbe witnesses, Charles "Weston, Richard K. Allen, and Louis Maklot, as to tbe time of tbe sale of tbe liquor; whereupon, tbe witnesses being called and not answering, tbe court pro* posed to read to tbe jury bis own minutes of tbe testimony, to which tbe counsel for tbe defendant objected. Tbe court then ordered tbe witnesses to be sent for. Tbe witness, Charles Weston, was brought into court, and tbe court told the jury to examine tbe witness. Tbe jury then wished to know of tbe witness, whether be purchased tbe liquor within tbe year next preceding tbe finding of tbe indictment — not •at what time within tbe year — but whether within tbe year at all. Tbe witness repeated bis evidence as near as be could, as be said. Tbe counsel proposed to examine tbe witness-; tbe court prohibited either counsel from interrogating tbe witness, ruling that it was for tbe jury alone, to inquire of tbe witness, what bis testimony was. Tbe counsel for tbe ■state and for tbe defendant, then became involved in a dispute about tbe testimony of tbe witness, whereupon tbe court stated to tbe defendant’s counsel, tbe state, and tbe jury, that tbe witness bad before sworn that it was within the year that the liquor was sold, and was so down on his minutes. The counsel again insisted on questioning the witness, which the court again refused to permit. To all these rulings and decisions, the defendant excepted. The jury returned a verdict of guilty on all the counts in the indictment, except the last. The defendant then moved to set aside the verdict, and for a new trial, for the following reasons:
    “ First. The verdict of the jury is against the evidence.
    <! Second. The court erred in giving the first and second instructions asked by the counsel for the state. [Here are copied into the motion, what the party alleges to be the instructions of the court.]
    
      “ Third. The court erred in giving the jury the following instructions. [Here, again, are copied into the motion what the party alleges to be other instructions given by the court.]
    “ Fourth. The court erred in permitting the jury to be recalled, after they had been out some four and a half hours, and introducing the testimony of the witness, Charles Weston, to prpve other facts that he had not testified to, before the jury retired.
    
      “ Fifth. The court erred in permitting the counsel for the state, to state to the witness, Weston, in the presence and hearing of the jury, after the witness had said that he had stated his testimony as he stated it before the jury retired, “ that he understood the witness to testify, that it was within the year that he purchased the liquor from the defendant,” and in refusing to let the defendant’s counsel, ask the witness if he had so sworn; and in the court’s saying to the counsel and the jury, that “the witness has before sworn, that it was within the year, and I have it down just so on my minutes.”
    “ Sixth. The verdict is against the law.”
    This motion was overruled by the court, to which decision the defendant excepted. The defendant then filed a motion in arrest of judgment, alleging 'in the motion the following reasons:
    
      “ 1. That the said indictment was not found by a legal grand jury of said county.
    “ 2. There is no record of the finding of said indictment by the grand jury of said county.
    “ 3. There is no entry of record of the grand jury having brought into court, and presented said indictment to the court.”
    During the pendency of this motion, it appearing to the court, that no entry of record had been made at the October term, 1858, of said court (the term at which the indictment was found), except as follows: “ This 6th day of October, A. D. 1853, the grand jury came into open court, and after presenting the several matters they had in charge, reported they had no further business, and were discharged from further attendance on this court at this termnor at the May term, 1854, of said court, of the finding or return into court of the grand jury, with the indictment against the defendant, upon which he was tried, the court, upon motion of the attorney for the state, ordered James Thorington, who was formerly, but was not then, clerk of said court, to make an entry on the records of said court, of the presentation and filing of the said indictment, as the same appeared on the 'back of the said indictment. This entry being made, the court thereupon, overruled the motion in arrest of judgment, to all which rulings, the defendant excepted, and judgment was entered upon the verdict. From this judgment, the defendant sued out a writ of error, and in this court assigns for error the following:
    1. The court erred in instructing the jury, that the evidence was sufficient to prove the identity of the persons named in the indictment.
    2. The court erred in instructing the jury, that the evidence was sufficient to prove the time of the alleged selling to be within one year.
    3. The court erred in recalling the'jury, and telling the jury what had been sworn to by the witness, Charles 'Weston, and in refusing the counsel for the defendant, the right to ask the witness, if he had sworn as the court stated he had.
    
      4. Tbe court erred in overruling tbe defendant’s motion for a new trial.
    5. Tbe court erred in directing a mmc pro tunc entry to be made at tbe third term after tbe indictment purports to baye been found, that tbe indictment was found at tbe October term, 1853, wben tbat court was bolden by another judge, and by different officers.
    6. Tbe court erred in overruling tbe defendant’s motion in arrest of judgment.
    
      W. H Leffingwell, for plaintiff in error,
    made tbe following points: -
    1. It is tbe province of tbe court to instruct tbe jury upon tbe law alone, and not upon tbe facts. This question has long been settled, and was recently recognized by this court, in tbe case of Houston v. The State.
    
    2. Tbe court should not state what has been proved, and nothing should appear from tbe charge of tbe court, by which tbe jury could infer tbat they were precluded from considering tbe facts. Porter v. Mcllroy, 4 Serg. & R. 442.
    8. Tbe record must show tbat tbe indictment was found by a competent grand jury, and by them returned into court, and tbat fact can be proved by no other evidence. 3 Rob. Prac. 97; Wheat. Crim. Law, 128; Commonwealth v. Cawood, 2 Yir. Cases, 541; Chappel v. State, 8 Terger, 166. And this defect cannot be supplied by a nunc pro tunc entry, or in any other way. Hite v. State, 9 Yerger, 198.
    
      D. C. Cloud, Attorney-General, and Grant & Whittalcer, for tbe state,
    contended:
    1. It does not appear, from tbe record, tbat tbe witness, Mitchell, was examined — what bis testimony was — or tbat it was at all material.
    2. Tbe second and third errors are not sustained by tbe record. Tbe jury came in, and requested the recalling of tbe witness, W eston. .
    3. Tbe court, overruled tbe motion for a new trial, properly. There were no facts to justify it. There is no evb dence before tbis court} to enable it-to determine wbetber tbe verdict was against tbe evidence.
    4. Tbe court bad a perfect right to order tbe nunc pro tunc entry. Tbe power of amending records is inherent in all courts. 4 TJ. S. Dig. 106 ; Silner v. Butterfield, 2 Carter, 24; 5 McLean, 135; State v. King, 5 Iredell, 203. But tbe record was complete, without tbe entry. Tbe indictment, and tbe indorsements thereon, are tbe record. They show tbe finding and presentment. Code, cbap. 168, §§ 2910 to 2914, inclusive; cbap. 171, § 2943; cbap. 16, § 144; cbap. 92, §§ 1577-79.
   Isbell, J.

Tbe first and second specifications of error are not sustained by tbe record. A bill of exceptions was taken to tbe overruling of a motion for a new. trial. Tbe motion for a new trial is copied into tbis bill. Tbe motion so copied, alleges that certain instructions were given, but tbe effect of tbis bill is only that tbe motion was filed and overruled, and not that tbe facts alleged in that motion, existed.

With regard to tbe third specification, it appears that, after tbe jury bad been out for some time, finding that they could not agree on tbe testimony of certain witnesses, they returned into court, and witness Weston was called. Tbe jury were told to examine him, and counsel for both parties were refused tbe right to interrogate tbe witness, after be bad repeated bis testimony on tbe trial. Tbe counsel for tbe state and defendant got into a controversy, or dispute, about tbe testimony of tbe witness, whereupon tbe court stated to tbe defendant’s counsel, tbe state, and tbe jury, that “ tbe witness bad before sworn, that it was within the year that tbe liquor was sold, and was so down on bis minutes.” Whereupon, counsel again insisted on questioning tbe witness, which tbe court again refused, ruling that it was for tbe jury alone, to inquire of tbe witness as to bis testimony. Although tbis was not a proper altercation to be carried on in court, in presence of tbe jury, we cannot ‘see that there is anything in tbe record that resembles instructing tbe jury on tbe facts; neither is there anything which makes it apparent that what the court said, was not true. Besides, the witness was still in court, and full leave given to the jury to interrogate him. As to the refusal, .on 'the part of the court, to allow counsel for either party to interrogate the witness in that stage of the proceeding, leaving it for the jury, for whose satisfaction alone the witness was called, so to do, under the supervision of the court, we -do not see any good ground of error. We think it would be presuming too much on the ignorance of the jury, to suppose that they were misled by this side-bar altercation; ■and that the refusal to allow counsel to interrogate the witness, was within the discretion of the court.

The fourth specification -of error stands very much on the same ground as the first and second. The fact that a motion for a new trial was made, which recites certain facts, and which was overruled, is clear. But the court has nowhere certified that any of the facts contained in that motion existed, except the facts in relation to the recalling of the witness Weston, which has just been disposed of; and these we do not regard as sufficient to justify the granting of a new trial, without showing that the jury were, in fact, misled by the declarations of the court in their presence.

The fifth specification is grounded on the fact, that no -entry was made, in the books of record of the court, of the finding of the indictment, until long after it was found, and then made in accordance with the indorsement on the in•dictment. We do not regard this as error. The -indictment was properly indorsed, and this indorsement was itself a ■record, and the only record that should appear until after -the arrest. See Code, §§ 141 and 1977, and Wrocl&lcge v. The State, ante, 167. The making of a record in the books, from the indictment, could not impair the proceéd-ings. As the motion in arrest was based on this last supposed error, this disposes of the sixth specification.

■Judgment affirmed.  