People v. Gray — 25 Wend. 464

Majority

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The People vs. George Gray.

Headnote

On, the trial of an indictment of an accessary before the fact, a certified copy of the original minutes of the court, in which the principal was tried and convicted is proper evidence of such conviction, if entered in the manner and approved as directed by the statute on the subject, where it appears that no record of conviction has been signed and filed. So it seems the original minutes thus entered and approved are evidence.

But the rough minutes or original entries made by the clerk, during the session of a court, not inspected and approved as directed by the statute, are not evidence.

Evidence showing an error or mistake in the approved minutes of the court is inadmissible.

Error from the Schenectady general sessions. George Gray was indicted as an accessary before the fact to a burglary committed by one John Saxby, and was tried, convicted and sentenced to the state’s prison. He sued out a writ of error. In the return to which, tivo indictments are set forth; one found at the Schenectady oyer and terminer on the 20th October, 1840, charging Saxby with having burglariously entered the dwelling house of one Oharles Sanders, and stolen therefrom a gold watch of the value of $50, and 14 silver watches; which indictment also charged Gray, with having feloniously procured and incited Saxby to commit the burglary writh which he was charged. The other indictment was found at the Schenectady general sessions, on the 26th November, 1840, reciting the burglary committed by Saxby, as set forth in the first indictment; and then charging Gray with having procured and incited Saxby to commit the felony. After these indictments, the return sets forth what purports to be the minutes of the trial of Gray in the court of general sessions; a motion to proceed to trial, the appearance of the prisoner, the empanelling of the jury, their verdict of guilty, and the sentence of the court. Next *fol- [ *466 ] lows a bill of exceptions, in which, after setting forth the evidence

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given to show the participation of the prisoner in the felony committed by Saxby, proceeds to state that it was conceded on the trial, that the prisoner, if guilty, was guilty as an accessary before the fact; and that the district attorney thereupon undertook to show the conviction of Saxby, and for that purpose, called the clerk of the county of Schenectady as a witness. The clerk testified that he was present at the Schenectady oyer and terminer, on the 21st day of October, when Saxby was arraigned on the indictment against him for burglary, and was proceeding to state the plea put in by Saxby, when the counsel for the prisoner objected to his saying any thing about the plea, until it was ascertained whether he had made an entry of the plea put in by Saxby. The clerk thereupon produced the engrossed, minutes of the oyer and terminer, by which it appeared that Saxby had pleaded not guilty. The clerk testified that a record of the conviction of Saxby had not been filed. The district attorney thereupon offered to prove by the verbal testimony of the clerk, and the production of the rough minutes of the oyer and terminer, kept by the clerk, that Saxby in fact pleaded guilty on his arraignment, and that the engrossed minutes as to the plea of JSaxby were erroneous: to which evidence the counsel for the prisoner objected, and upon the objection being over-ruled, excepted to the decision of the court. The clerk thereupon testified, that Saxby on his arraignment pleaded guilty, that he made an entry of such plea in his rough minutes, and supposed there was a mistake in this respect in the engrossed minutes. He further testified on his cross-examination, that sometime during the oyer and terminer, after the arraignment of Saxby, it was suggested by the district attorney, that the court should allow him to withdraw his plea of guilty, and plead not guilty, which permission was given by the court; but he, the witness, had no recollection that Saxby availed himself of such permission, and there was no entry in the minutes of the court that such plea was withdrawn. The counsel for the prisoner insisted that the evidence was not sufficient to prove the conviction of Saxby; but the court held [ *467 ] ^otherwise, and the counsel for the prisoner excepted to this decision also. The case was submitted to the jury,, who found the prisoner guilty.

S. W. Jones, for the prisoner,

insisted that the conviction of Saxby, the principal, was not duly proved. He also contended, that it not appearing from the proceedings returned, that the prisoner was present in court when sentence was pronounced against him, the judgment should for that cause be reversed. He also argued that two distinct offences of burglary of different degrees, were contained in the same count, and that therefore the judgment was not properly rendered. '

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P. Potter, (district attorney,) for the people.

By the Court,

The record of judgment has not been brought up, and objections to errors in form, that might be corrected in making it up, cannot be entertained. The return of the clerk of the sessions need contain no more than a copy of the indictment, bill of exceptions, and judgment of the court. 2 R. S. 620, § 20. It was stated on the argument that two distinct offences of burglary of different degrees were contained in the same count against the prisoner; but on looking at the return, the objection is not sustained in point of fact. The indictment against the principal, a copy of which is given, may be regarded as surplusage; as the one against the prisoner contains all that is essential to constitute the of-fence, and is substantially in due form. 2 Chitty’s Crim. Law, 6. It sets forth an indictment against the principal, and then the charge as accessary.

The material question in the case is, as to the competency of the proof of the conviction of the principal: in other words, whether the original minutes of the trial in the oyer and terminer were proper evidence of the fact. It is clear they are not proper evidence at common'law. 13 John. R. 82 ; 14 Id. 182 ; Cowen & Hill’s Notes, 1063, n. 718. They might be when used in the same court in which they were made. 8 Barn. & Cres. 341. The question then is, have they been made evidence by statute ? The only provision *that can be relied on is as fol- [ *468 ] lows: “ A copy of the minute of any conviction, with the sentence of the court thereon, entered by the clerk of any court, duly certified by the clerk in whose custody such minutes shall be, under his official seal, ’ together with a copy of the indictment, &c., certified in the same manner, shall be evidence in all courts and places of such conviction, in all cases where it shall appear by the certificate of the clerk or otherwise that no record of judgment of such conviction has been signed and filed.” 2 R. S. 618, § 10. A copy of the minutes having been thus made competent, it is supposed the originals are equally so; which I admit reasonably follows. By section five, it is made the duty of the clerk in any court in which judgment upon conviction has been rendered, to enter it fully on the minutes, stating briefly the offence for which such conviction was had, and the court are to inspect such entries aud conform them to the facts. The sixth section makes it the duty of the district attorney to prepare for the clerk the statement of the offence, as the same is charged in the indictment, to be entered in the minutes ; but the court are to inspect it and see that it conforms to the indictment. Now, these are the minutes, a copy of which, under the tenth section, are competent evidence of the conviction ; they are also the originals that may be used for the like purpose. The truth is, that these sections provide a substitute for the record of conviction required at com

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mon law, and were so intended by the legislature. 3 R. S. 851. The copy certified by the clerk corresponds to the exemplified or sworn copy of the record of conviction, and the revised minutes to the original record. Either are competent, provided no record has been made. If it has, that is still regarded as the best evidence.

Upon this view, I think the court erred in admitting the original entries, or rough minutes, and the parol testimony of the clerk, as proof of the conviction of Saxby. They were in no sense the revised minutes contemplated by the statute. The engrossed minutes spoken of by the clerk, if any, are to be regarded as such; but even these, for aught that appears, did not embrace the requisite matters. It may be, however, from the [ *469 ] course the trial took, that these minutes *are not fully stated.

The act obviously intended a careful entry of the offence and conviction, after verdict, beyond the mere rough memoranda of the clerk; and such seems to have been his understanding of the law in the case, from the revised minutes which are alluded to. We are to assume these were made out under the supervision of the court; if not, even they were incompetent. But assuming they were, they afforded the only competent evidence of the conviction; and the court erred by permitting an impeachment of their correctness.

Judgment reversed, venire de novo.