Opinion of the Court. No such order was found upon the records of the Circuit Court at the time sentence was imposed upon the prisoner in the District Court; if no such order had been made previous to that judgment, the case was still pending in the Circuit Court, and the District Court had no authority to pass the sentence it did upon the prisoner. This view of the subject calls upon us to inquire whether the nunc pro tunc order of September 30 was a valid order, and one within the power of the Circuit Court to make. Our first impression was that whatever might be the powers of the courts in this regard over their records during the term in which the transactions are supposed to have occurred, the record of which, or failure to make any record of which, is the subject of amendment, yet when it was attempted to do this after an adjournment and at a subsequent term of the court, the powers of the court in making such changes in the records of the proceedings were limited to those in which there remained written memoranda of some kind in the case, and among the files of the court, by which the record could be amended, if erroneous, or the proper entry could be supplied, if one had been omitted. And especially that in criminal procedure this power to make such entries, at a subsequent term of the court, of what had transpired at a former term, as would establish the authority of the court to pass a sentence of fine or imprisonment, either did not exist at all, or, if it did, was limited to cases in which some written evidence of what was done remained in the papers connected with the case. We are satisfied, however, upon an examination of the authorities, that this restriction upon the power of the court does not exist. Mr. Bishop, in his first volume on Criminal Proceedings, section 1160, states the doctrine in the following terms: "When the term of the court has closed, it is too late to undo, at a subsequent term, what was done at the former term. A judgment of the court, for instance, cannot then be opened, and modified or set aside. Neither, it has been held, can the clerk, at a subsequent term, make an entry of what trulv. Opinion of the Court. transpired at the preceding term. But this refers to the power of the clerk, proceeding of his own motion. The court may order nunc pro tunc 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. So of the mistake of the clerk in the name of the judge before whom the indictment was found." The present case comes within the clause of this section which declares the power of the court to make nunc pro tunc entries to supply some omission in the record of what was done at the time of the proceedings. An extensive list of authorities is cited in the foot-note of Mr. Bishop, and among those which support the power of the court to make a record of some matter which was done at a former term, of which the clerk had made no entry, the following cases directly affirm that proposition: Galloway, Administrator v. McKeithen, 5 Iredell (Law), 12; Hyde v. Curling, 10 Missouri, 374; State v. Clark, 18 Missouri, 432; Nelson v. Barker, 3 McLean, 379; Bilansky v. The State of Minnesota, 3 Minnesota, 427. The opinion of the court in this latter case contains a somewhat full reference to the history of this subject, as it is found in the reports of the English cases, and in Blackstone's Commentaries, vol. 3, p. 408, the result of which is to show that at an early day the English courts exercised this power so recklessly, when the pleadings were all ore tenus, and great liberality was necessarily allowed in amendments, that the abuse was corrected by the king, who made the declaration that "although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own records shall be a warranty for their own wrong, nor that they may rase their rolls, nor amend them, nor record them contrary to their original enrolment." This, Blackstone declares, meant only that the justices should not by their own private rasure change a record already made up, or alter the truth to any sinister purpose. In the Minnesota case, the plaintiff in error had been con Opinion of the Court. victed of the crime of murder, and after trial and verdict, and after the case had been carried to the Supreme Court of the State, the record of the proceedings on the trial was amended so as to show affirmatively that each juror was sworn as prescribed by law; that they were put in charge of the officer to keep them as prescribed by law; and that they were polled at the request of defendant on their coming in with their verdict; matters which, it seems, had been omitted in the record of the judgment. The Supreme Court in that case, as we think, stated with force and precision the true rule on this subject. They said: "While we should go as far as any court in reprobating a rule to place the proceedings of a court almost entirely at the mercy of the subordinate officials thereof, we should be scrupulously careful in adopting any rule which would tend to destroy the sanctity or lessen the verity of the records. And while we admit the power to amend a record after the term has passed in which the record was made up, we deprecate the exercise of the power in any case where there was the least room for doubt about the facts upon which the amendment was sought to be made. But when the facts stand undisputed, and the objection is based upon the technical point alone that the term is passed at which the record was made up, it would be doing violence to the spirit which pervades the administration of justice in the present age to sustain it. It is our opinion that this power, of necessity, exists in the District Court, and that its exercise must in a great measure be governed by the facts of each case." The case in 5 Iredell, although a civil suit, established the doctrine that a court has a right to amend the records of any preceding term by inserting what had been omitted either by the act of the court or clerk, and that when so amended it stands as if it had never been defective, or as if the entries had been made at the proper time. The case of Hyde v. Curling, 10 Missouri, 227, which was also a civil suit, and seems to have been very well considered, is thus stated in the syllabus of the report: "A court has power to order entries of proceedings had by the court at a previous term to be made nunc pro tunc, but where the court VOL. CXXXIV-10 Opinion of the Court. has omitted to make an order which it might or ought to have made, it cannot at a subsequent term be made nunc pro tunc." In the case in 18 Missouri, of State v. Clark, it appeared that the prisoner had been tried on an indictment which was not signed at the time of the trial by the foreman as a true bill and that the clerk had not marked the time of filing the same, on the indictment. It was held, on writ of error to the Supreme Court, that the court had a right, on motion at a subsequent term, to amend its record by a statement of these facts, not only by the endorsement upon the bill, but by a regular entry on the journal, that "the grand jury returned into court the following true bills of indictment," (naming the one under which the defendant was convicted). The court said that, if these acts had taken place, the failure of the clerk to make proper and formal entries on the records of the court might have been supplied or corrected by having such entries made nunc pro tunc. In Nelson v. Barker, 3 McLean, 379, Mr. Justice McLean observed, in regard to an amendment of a declaration under a plea of misnomer, that it was objected to on the ground that there was nothing to amend by, to which he replied that at common law the court could only give leave to amend when there was something to amend by, and anciently amendments were required to be made at the term at which the error occurred, but now an amendment may be made at any time. before judgment, and in some cases after judgment; and he refers to the 32d section of the Judiciary Act of 1789. This, which has been commonly called the statute of jeofails and amendments of the United States, may be found in section 954, Revised Statutes, and is as liberal in the powers which it confers on the courts to make amendments as any of those enacted in more modern times. We are forced to the conclusion that the action of the Circuit Court in making the order for a nunc pro tunc record, which showed that the case had been remanded from that court to the District Court prior to the time when the sentence was passed upon the prisoner, was a legitimate exercise of power. With regard to the proposition which denies that the indict Opinion of the Court. ment in the District Court and the evidence by which it is sustained conferred jurisdiction on that court, we do not think it needs much comment. The grand jurors charged in the first count of this indictment that "the said Wight, who was then and there a person employed in one of the departments of the postal service of the United States, to wit, employed as an assistant to the superintendent of letter carriers in the postoffice at Detroit aforesaid, unlawfully and wrongfully did secrete and embezzle a letter which came into his possession in the regular course of his official duties, and which was intended to be carried by a letter carrier, which letter then and there contained five pecuniary obligations and securities of the government of the United States," and were the property of one Angus M. Smith, and with the letter were then and there enclosed in an envelope addressed to "Oscar Singleton, Montevideo, Cook Co., Mich." A similar statement is in effect made in all the other counts. The law under which the prisoner was indicted is section 5467 of the Revised Statutes of the United States, the language of which, applicable to the case, is as follows: แ "Any person employed in any department of the postal service who shall secrete or embezzle or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail-carrier, mail-messenger, route-agent, letter-carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post-office or branch post-office established by authority of the Postmaster General, and which shall contain any note, bond, draft, check, warrant, revenue stamp, postage stamp, stamped envelope, postal-card, money-order, certificate of stock, or other pecuniary obligation or security of the Government, any such person who shall steal or take any of the things aforesaid out of any letter, packet, bag, or mail of letters which shall have come into his possession, either in the regular course of his official duties or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, |