PiNNey, J.
1. It is insisted that under the decision in the case of French v. State, 85 Wis. 400, 409, the failure ofv the record, as it stood at the time the writ of error was sued out and return made, to show affirmatively that the accused was personally present at all the several stages of [174]*174the trial and conviction, requires that the sentence and judgment of the court below should be reversed, and that the subsequent amendment of the record in these respects was without warrant of law and a nullity. The defects and omissions in the record were all the result of failure and neglect on the part of the clerk to make the entries essential to a legal record of the trial of a criminal case. Ought there to be a failure of justice in any such case, either civil or criminal, beyond the power of the court to avert it by proper amendment? There is no statute of amendments applicable to defects in criminal cases such as existed in this record. By the common law it is well established that a court has no power to review or reverse its own judgment of a previous term, and that as to all matters on which the mind of the court acted, or is presumed to have acted, in the rendition of the judgment, it is precluded from again acting at a subsequent term and changing its opinions or altering its decisions. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265. But this rule, it is there held, does not preclude the court from correcting clerical errors or mistakes in matters of form, even after the term. The amendments allowed in this case did not go to any subject or matter upon which the mind of the court acted or can be presumed to have acted, but simply to the correction of clerical errors or omissions. Such corrections may always be made, and are not within the rule above stated ( Wyman v. Buckstaff, 24 Wis. 471); and the court has power, after the term, to correct a mistake in the entrjr of its judgment, so as to make the record conform to the judgment actually pronounced (Durning v. Burkhardt, 34 Wis. 585; Will of Cole, 52 Wis. 591; Williams v. Hayes, 68 Wis. 248). Errors occurring by mere mistake or inadvertence may in like manner be made to conform to the fact (State ex rel. Taylor v. Delafield, 69 Wis. 264), at a subsequent term, even after an appeal has been taken, though technic[175]*175ally tbe defendants bad the right to avail themselves of the error on appeal at the time it was taken, and to have the appeal determined, so far as the question of costs is concerned, without regard to any subsequent correction of the order appealed from (Kelly v. C. & N. W. R. Co. 70 Wis. 335; German Mut. F. F. Ins. Co. v. Decker, 74 Wis. 560). But it is believed that no such limitation exists in or would be applicable to a criminal case. 20 Am. & Eng. Ency. of Law, 523, 524, and cases cited.
It is said that no amendment made after the term can be allowed, except by record evidence, or facts appearing in the record itself, by which to make the amendment, and cases are cited to that effect; but other authorities of the highest respectability deny that the court is thus restricted as to evidence. In Rhoads v. Comm. 15 Pa. St. 272, it was held that the court had power to supply record evidence nunopro tuno of the forfeiture of a recognizance which, by misprision of the clerk, had not been recorded, Gibsou, O. J., saying: “The old notion that the record remains in the breast of the court only to the end of the term has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books and those of our neighbors.” It savors too much of strict adherence to old notions to hold that the court may not receive any evidence to supply a defect or correct an error in the record that would be received on the trial of an issue to determine any important fact affecting the life, liberty, or property of the citizen. The amount and kind of evidence to satisfy the court as to what the entry should be rests with the court. The cause is heard here upon the record, and this includes, of necessity, the entire record as amended nunopro tuno; and there is no reason or force in the objection that the amendment was made after writ of error brought, so long as the party was present and heard on the [176]*176motion, and any abuse in the exercise of the power may be corrected at the hearing on the writ of error (Freem. Judgm. § 72; Fay v. Wenzell, 8 Cush. 317; Balch v. Shaw, 7 Cush. 284); and this rule applies as tvell to criminal as civil cases. “ The court may order nuno fro tune entries, as they are called, made to supply some omission in the entry of what was done at the preceding term; yet this is a power the extent of which is limited and not easily defined. In general, mere clerical errors may be amended in this way.” 1 Bish. Crim. Proc. (2d ed.), sec. 1160; State v. Clark, 18 Mo. 432; West v. State, 22 N. J. Law, 212; Bilansky v. State, 3 Minn. 427. In the case last cited, the plaintiff in error had been convicted of the crime of murder; and, after the case had been carried to the supreme court, the record of the proceedings on the trial was amended so as to show affirmatively that each juror was sworn, and that they were put in charge of the officer to keep them as prescribed by law, and that they were polled on coming in with their verdict, at the request of the defendant,' — • matters which had been omitted from the record,— and the right to make such amendments to supply defects in or omissions from the record was sustained. In the recent case of In re Wight, 134 U. S. 136, 143, the doctrine of this case was affirmed, and the power of the court to make such amendments in a criminal case after the term was discussed and sustained.
It is a matter of regret that many of the records in criminal as well as civil cases coming to this court are defective in important particulars, and made up in an irregular, imperfect, or confusing manner. The circuit judges ought to exercise such supervision over the method of making up, keeping, and certifying records as will protect the rights of the public and parties litigant; and to this end they may, if necessary, remove negligent or incompetent clerks. The amendments to the record made by the circuit court in this [177]*177case, and returned to this court, were rightfully and properly made, and the objections relied on cannot prevail.
2. A careful examination of the evidence satisfies us that the plaintiff in error was improperly convicted of murder in the third degree; that there was no evidence to warrant the instructions given to the jury on that subject, leaving them to find him guilty of that offense. Murder in the third degree consists in “ the killing of a human being, without any design to effect death, by a person engaged m the commission of any felony.” R. S. sec. 4345. Any offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison, is a felony, within the meaning of this statute. Sec. 4837. There is no claim that the plaintiff in error, on the occasion in question, was guilty of any felony, within the meaning of sec. 4637, unless it was under sec.
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PiNNey, J.
1. It is insisted that under the decision in the case of French v. State, 85 Wis. 400, 409, the failure ofv the record, as it stood at the time the writ of error was sued out and return made, to show affirmatively that the accused was personally present at all the several stages of [174]*174the trial and conviction, requires that the sentence and judgment of the court below should be reversed, and that the subsequent amendment of the record in these respects was without warrant of law and a nullity. The defects and omissions in the record were all the result of failure and neglect on the part of the clerk to make the entries essential to a legal record of the trial of a criminal case. Ought there to be a failure of justice in any such case, either civil or criminal, beyond the power of the court to avert it by proper amendment? There is no statute of amendments applicable to defects in criminal cases such as existed in this record. By the common law it is well established that a court has no power to review or reverse its own judgment of a previous term, and that as to all matters on which the mind of the court acted, or is presumed to have acted, in the rendition of the judgment, it is precluded from again acting at a subsequent term and changing its opinions or altering its decisions. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265. But this rule, it is there held, does not preclude the court from correcting clerical errors or mistakes in matters of form, even after the term. The amendments allowed in this case did not go to any subject or matter upon which the mind of the court acted or can be presumed to have acted, but simply to the correction of clerical errors or omissions. Such corrections may always be made, and are not within the rule above stated ( Wyman v. Buckstaff, 24 Wis. 471); and the court has power, after the term, to correct a mistake in the entrjr of its judgment, so as to make the record conform to the judgment actually pronounced (Durning v. Burkhardt, 34 Wis. 585; Will of Cole, 52 Wis. 591; Williams v. Hayes, 68 Wis. 248). Errors occurring by mere mistake or inadvertence may in like manner be made to conform to the fact (State ex rel. Taylor v. Delafield, 69 Wis. 264), at a subsequent term, even after an appeal has been taken, though technic[175]*175ally tbe defendants bad the right to avail themselves of the error on appeal at the time it was taken, and to have the appeal determined, so far as the question of costs is concerned, without regard to any subsequent correction of the order appealed from (Kelly v. C. & N. W. R. Co. 70 Wis. 335; German Mut. F. F. Ins. Co. v. Decker, 74 Wis. 560). But it is believed that no such limitation exists in or would be applicable to a criminal case. 20 Am. & Eng. Ency. of Law, 523, 524, and cases cited.
It is said that no amendment made after the term can be allowed, except by record evidence, or facts appearing in the record itself, by which to make the amendment, and cases are cited to that effect; but other authorities of the highest respectability deny that the court is thus restricted as to evidence. In Rhoads v. Comm. 15 Pa. St. 272, it was held that the court had power to supply record evidence nunopro tuno of the forfeiture of a recognizance which, by misprision of the clerk, had not been recorded, Gibsou, O. J., saying: “The old notion that the record remains in the breast of the court only to the end of the term has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books and those of our neighbors.” It savors too much of strict adherence to old notions to hold that the court may not receive any evidence to supply a defect or correct an error in the record that would be received on the trial of an issue to determine any important fact affecting the life, liberty, or property of the citizen. The amount and kind of evidence to satisfy the court as to what the entry should be rests with the court. The cause is heard here upon the record, and this includes, of necessity, the entire record as amended nunopro tuno; and there is no reason or force in the objection that the amendment was made after writ of error brought, so long as the party was present and heard on the [176]*176motion, and any abuse in the exercise of the power may be corrected at the hearing on the writ of error (Freem. Judgm. § 72; Fay v. Wenzell, 8 Cush. 317; Balch v. Shaw, 7 Cush. 284); and this rule applies as tvell to criminal as civil cases. “ The court may order nuno fro tune entries, as they are called, made to supply some omission in the entry of what was done at the preceding term; yet this is a power the extent of which is limited and not easily defined. In general, mere clerical errors may be amended in this way.” 1 Bish. Crim. Proc. (2d ed.), sec. 1160; State v. Clark, 18 Mo. 432; West v. State, 22 N. J. Law, 212; Bilansky v. State, 3 Minn. 427. In the case last cited, the plaintiff in error had been convicted of the crime of murder; and, after the case had been carried to the supreme court, the record of the proceedings on the trial was amended so as to show affirmatively that each juror was sworn, and that they were put in charge of the officer to keep them as prescribed by law, and that they were polled on coming in with their verdict, at the request of the defendant,' — • matters which had been omitted from the record,— and the right to make such amendments to supply defects in or omissions from the record was sustained. In the recent case of In re Wight, 134 U. S. 136, 143, the doctrine of this case was affirmed, and the power of the court to make such amendments in a criminal case after the term was discussed and sustained.
It is a matter of regret that many of the records in criminal as well as civil cases coming to this court are defective in important particulars, and made up in an irregular, imperfect, or confusing manner. The circuit judges ought to exercise such supervision over the method of making up, keeping, and certifying records as will protect the rights of the public and parties litigant; and to this end they may, if necessary, remove negligent or incompetent clerks. The amendments to the record made by the circuit court in this [177]*177case, and returned to this court, were rightfully and properly made, and the objections relied on cannot prevail.
2. A careful examination of the evidence satisfies us that the plaintiff in error was improperly convicted of murder in the third degree; that there was no evidence to warrant the instructions given to the jury on that subject, leaving them to find him guilty of that offense. Murder in the third degree consists in “ the killing of a human being, without any design to effect death, by a person engaged m the commission of any felony.” R. S. sec. 4345. Any offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison, is a felony, within the meaning of this statute. Sec. 4837. There is no claim that the plaintiff in error, on the occasion in question, was guilty of any felony, within the meaning of sec. 4637, unless it was under sec. 4377, which declares that “ any person who shall assault another with intent to do great bodily harm, shall be punished by imprisonment in the state prison not more than three years nor less than one year, or in the county jail not more than one year, or by fine,” etc.; and for assaulting 'Robert Risto, £< with intent to do great bodily harm.” The question, in brief, is, Was August Hoffman, the plaintiff in error, at the time of the killing of Herzog, engaged in the commission of an assault on Robert Risto with the intent to do great bodily harm? If the assault on Robert Risto was at an end before the killing of Herzog occurred, so that the latter act had no legal connection with or relation to the assault on Robert Risto, and it can be said that the killing of Herzog did not occur during such assáult, the plaintiff in error ought not to have been convicted of murder in the third degree. The evidence is clear and beyond question that the assault on Risto had terminated and was at an end before the plaintiff in error struck Herzog. He had wholly desisted from his demonstrations against Risto, and had turned [178]*178around to face Herzog, who had taken the chair from him, and it had been put on the floor. lie made motions manifesting an intention to fight with or defend himself against Herzog, and, at a time when it does not appear that any one was threatening or assaulting Risto, Herzog sprang-forward, struck the plaintiff in error a heavy blow about his eye, and felled him to the floor upon his back. The-plaintiff in error got up, and he and Herzog engaged in a struggle, when they fell on the floor, during which the-wound was given which caused Herzog’s death. It would seem from Risto’s evidence that he was not in the room at the time the killing occurred, and no witness makes any clear mention of his presence or of anything that was done to or against him after Herzog took the chair away from the plaintiff in error. It is not sufficient that the plaintiff' in error killed Herzog; but, in order to render him guilty of murder in the third degree, at the time the homicide was committed it was requisite that he should have been engaged in an assault on Robert Risto with intent to do great bodily harm. This might occur in various ways, as if, during the assault, Herzog had come between the parties, and received a mortal blow or wound intended for or aimed at Risto, or he had been intentionally stricken down by a mortal blow or wound in an attempt to reach Risto. State v. Hammond, 35 Wis. 315, 318; Terrill v. State, 74 Wis. 278, 284.
The finding of the jury is, in legal effect, that the plaintiff in error killed Herzog without any design to effect his death. In murder in the third degree the malice and felonious intent necessary to make it such is derived from the felony by the commission, or in the commission, of which the killing happens. Pliemling v. State, 46 Wis. 516, 519, in which the subject is fully discussed by the present chief justice. So in State v. Smith, 32 Me. 369, the court says: “ The malice is implied when the killing is committed by a. [179]*179person when in the perpetration of a crime punishable in the state prison; . . . and if, in the perpetration of that offense, a killing occurs, the malice making the killing murder may be implied.” In Pliemling v. State, 46 Wis. 516, the conclusion was reached, that, “ in order to make a killing ‘ without a design or intention ’ murder in the third degree, the felony committed or attempted, from which the implied malice necessary to murder must be derived, must at least have some intimate and. close relation with the killing, and must not be separate, distinct, and independent from it.” It is not enough that the killing occurred soon or presently after the felony attempted or committed. There must be such a legal relation between the two that it can be said that the killing occurred by reason and as a part of the felony, or, as in this case, that the killing occurred before the assault on Robert Risto was at an end; so that the assault had a legal relation to the killing, and was concurrent with, in part at least, and a part of, it, in an actual and material sense. The assault upon Robert Risto and the killing of Herzog by the plaintiff in error, according to the evidence, bore no such actual or legal relation; and the court erred in submitting to the jury whether he was guilty of murder in the third degree. Eor this reason the conviction must be reversed.
By the Oourt.— The judgment of the court below is reversed, and the cause is remanded for a new trial. The warden of the state prison at Waupun will deliver the prisoner, August Hoffmam,, to the sheriff of Marathon county, to be held by him in custody until he is discharged therefrom according to law.