Johnson v. Commonwealth

80 Ky. 377, 1882 Ky. LEXIS 72

• Court: Court of Appeals of Kentucky
• Decided: September 23, 1882
• Status: Published

Opinion

CHIEF JUSTICE HARGIS

delivered the opinion of the court.

The appellant was indicted and tried for the crime of murder. A verdict of guilty, and fixing his punishment at confinement in the penitentiary for life, was found against, him. He was orally sentenced by the court, but the verdict, and judgment were not spread upon the order-book. At the: time the judgment was rendered the following entry was; made on the minute-book, viz:

‘ ‘ Commonwealth

vs.

Written order or judgment. ”

“ George Johnson.

The minute-book was signed by the judge, and the court'adjourned without the orders, of the last day of the term, which were entered on the order-book., being signed by him also.

In this state of the records the appellant appealed or attempted to appeal. He was unable to obtain from the clerk of the lower court a transcript of the record; and oh his motion, accompanied by affidavits, a rule and an alias, rule were issued against the clerk, and after the expiration. of more than-six months that functionary responded to the-rule by filing a copy of the yerdict and judgment purporting-to have been taken from the signed orders on the order-book.

The appellant was taken to the penitentiary before the-,, judgment was signed by the judge, and while the skeleton minute on the minute-book, and the verdict and judgment, written in full by the clerk on the order-book among the-last day’s unsigned proceedings of the term of the court,, at which appellant was convicted, were the only record evidence of the verdict and judgment against him-.

The law requires that “the proceedings of each day shall' be drawn up by the clerk from his minutes in a plain, legible manner, which, after being corrected as ordered by the 'court, and read in an audible voice, shall be signed by the-presiding judge.”

“Any clerk offending herein shall be fined five hundred, dollars.” (Section 2, article 2, chapter 16, General Statutes.).-

The preservation, certainty, and perpetuation of the records of the court is of the highest importance; and the safeguards which the law, for the purpose of rendering-them permanent and conclusive, has thrown around them-should be maintained with scrupulous care, and observed by the courts with ceaseless vigilance.

Upon their integrity and preservation depend the deafest and most valuable rights of the citizen; and from the loose practice exhibited by this record confusion, uncertainty, and. insecurity must follow as an inevitable consequence, and1 the verity of the records of the courts rendered doubtfuL and perplexing. ■ • •

This, court said, in the case of The Commonwealth v.. Chambers, 1st J. J. Mar., 114, that “the business trans•acted by the court is stated in the minute-book in short -notes, and these are written out on the order-book or record proper, at full length, as the clerk has time. When so written out and signed by the judge they constitute the proper record^ of the court, and until signed by the judge they cannot with propriety be considered the record. We know that the judges of the circuit courts sometimes, by sighing the minutes, give, or attempt to give, .the minute-book the ‘force of a record; but this is a practice which we think •ought not to be tolerated. The minutes are, generally,' .too imperfect to ■ show clearly and fully what the court has •decided and done.

The practice of permitting the clerk, after the adjourn.ment of the court, to write out the minutes at full length, and insert many things which cannot appear from the min-utes, does pro tanto constitute him in fact a judicial officer in vacation. Such practices should be discontinued. (See Raymond, &c., v. Smith, &c., 1st Met., 67.) Thus it will .be seen that the minute-book did not contain the legal orders of the court, and the signature of the judge did not .increase their validity; so that we have before us a verdict •and judgment illegally entered and illegally executed, and their subsequent entry on the order-book by the clerk did not give them any validity before they were signed by the judge, if, indeed, the last day’s proceedings now embracing the verdict and judgment and entered on the order-book thave even been signed by him

Wherefore, the judgment is reversed, and cause remanded, •with directions to grant appellant a new trial.