STATE
v.
David CANNON.
No. 2.
Supreme Court of North Carolina.
September 19, 1956.*341 Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. Claude L. Love, for the State.
R. Brookes Peters, Gen. Counsel, and Parks H. Icenhour, Raleigh, for the State Highway and Public Works Commission.
Jones, Reed & Griffin, Kinston, and C. Banks Finger, Franklin, for defendant.
DENNY, Justice.
The defendant raises these questions on this appeal:
1. Did Judge Pless, on the motion of the State made at the April Term 1956 of the Superior Court of Macon County, have the power to correct the minutes of the August Term 1951 of said court?
2. Was oral evidence competent in support of the motion of the State to correct said minutes?
3. Are the findings of fact incorporated in the judgment entered by Judge Pless supported by the evidence offered in support of the above motion?
4. Is the judgment of his Honor, Bickett, J., entered on the hearing in the habeas corpus proceeding in the cause, decreeing that the judgment of his Honor, Rudisill, J., entered in said cause at the December Term 1951 of the Macon County Superior Court, was void, binding upon the State?
5. Is the judgment of his Honor, Judge Pless, entered at the April Term 1956 of the Macon County Superior Court in this cause, valid?
6. Is the defendant, on the record in this appeal, entitled to be discharged from custody?
*342 We will consider these questions in the order stated.
1. It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty. 14 Am.Jur., Courts, sections 141, 142, and 143, page 351, et seq.; 21 C.J.S., Courts, § 227 b, p. 423; Mcintosh, N. C. Practice and Procedure, Second Edition, Volume 2, section 1711, page 161; Galloway v. McKeithen, 27 N.C. 12, 42 Am.Dec. 153; Phillipse v. Higdon, 44 N.C. 380; Mayo v. Whitson, 47 N.C. 231; Foster v. Woodfin, 65 N.C. 29; Walton v. Pearson, 85 N.C. 34; Brooks v. Stephens, 100 N.C. 297, 6 S.E. 81; Ricaud v. Alderman Norfolk Southern R. Co. v. Reid, 187 N. C. 320, 121 S.E. 534; Oliver v. Board of Com'rs of Johnston County, 194 N.C. 380, 139 S.E. 767; State v. Tola, 222 N.C. 406, 23 S.E.2d 321; State v. Maynor, 226 N.C. 645, 39 S.E.2d 833; Gagnon v. United States, 193 U.S. 451, 24 S. Ct. 510, 48 L. Ed. 745.
This Court has quoted with approval many times the statement contained in the opinion of Ruffin, J. in the case of Walton v. Pearson, supra, which is as follows: "It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and every instance; and this it must do upon the application of any person interested, and without regard to its effect upon the rights of parties, or of third persons; and neither is it open to any other tribunal to call in question the propriety of its action or the verity of its records, as made. This power of a court to amend its records has been too often recognized by this Court, and its exercise commended, to require the citation of authoritiesother than a few of the leading cases on the subject. See Phillipse v. Higdon, 44 N.C. 380; Foster v. Woodfin, 65 N.C. 29; Mayo v. Whitson, 47 N.C. 231; Kirkland v. Mangum, 50 N.C. 313."
2. The power to amend or supply omissions in minutes of a court of record should be exercised with care and caution. "The proof of the defect should be clear and satisfactory, * * * but in this state it is left to the court to determine by any satisfactory evidence that the mistake was made, and the action of the court is not subject to review." Mcintosh, N. C. Practice and Procedure, Second Edition, Volume 2, section 1711, page 161, et seq.; 14 Am.Jur., Courts, section 145, page 353; Mayo v. Whitson, supra; Beam v. Bridgers, 111 N.C. 269, 16 S.E. 391; Creed v. Marshall, 160 N.C. 394, 76 S.E. 270; Holton v. Lee, 173 N.C. 105, 91 S.E. 602; Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794.
Parol evidence is competent in this jurisdiction in support of a motion to correct the minutes or to supply an omission in the minutes of a court of record. However, such evidence is not admissible to contradict a court record when such record is collaterally attacked. Norfolk Southern R. Co. v. Reid, supra; State v. Tola, supra. Furthermore, in the exercise of power to amend the record of a court, the court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error or incorporate anything in the minutes except a recital of what actually occurred. 30 Am. Jur., Judgments, section 94, page 866.
3. The findings of fact incorporated in the judgment entered by Pless, J. at the April Term 1956 of the Superior Court of Macon County, are supported by clear and satisfactory evidence. In fact, the defendant has not at any time denied that he pleaded to the bill of indictment; that a jury was duly impaneled, or that it returned *343 a verdict of guilty and that the verdict was accepted by the court. He declined to offer any evidence in the hearing below, although he was given the opportunity to do so. He relies solely upon his right to a discharge on the fact that the minutes of the court, prior to their amendment, were not complete in that they did not contain a recital of the plea, the impaneling of the jury, and the verdict, which fact was found by Bickett, J. and upon which he held the judgment was void. Judge Bickett, however, did not find that no plea was entered; that a jury was not impaneled, or that the jury did not return a verdict of guilty.
4. Our statute, G.S. § 17-4, subsection 2, provides that an application to prosecute the writ in a habeas corpus proceeding shall be denied, "Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree."
It is said in 39 C.J.S., Habeas Corpus, § 15, p. 448, et seq.: "Where the restraint is under legal process, mere errors and irregularities which do not render the proceeding void are not ground for relief by habeas corpus, because in such cases the restraint is not illegal, but for incurable, radical and fatal defects plainly and indisputably manifest of record, relief should be granted even on habeas corpus", citing among numerous authorities, State v. Edwards, 192 N.C. 321, 135 S.E. 37, 38.
In the last cited case it is said: "It is well settled that, in habeas corpus proceedings, the court is not permitted to act as one of errors and appeals, but the right to afford relief, on such hearings, arises only when the petitioner is held unlawfully, or on a sentence manifestly entered by the court without power to impose it. The judgment must be void as distinguished from erroneous. * * * Speaking to the question in United `States v. Pridgeon, 153 U.S. 48, 14 S. Ct. 746, 38 L. Ed. 631, the court said: `Under a writ of habeas corpus, the inquiry is addressed, not to errors, but to the question whether the proceedings, and judgment rendered therein, are, for any reason, nullities; and, unless it is affirmatively shown that the judgment or sentence under which the prisoner is confined is void, he is not entitled to his discharge.' Again, in People v. Liscomb, 60 N.Y. 559, Allen, J., delivering the principal opinion, said: `If there was no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void. * * * In other words, upon the writ of habeas corpus, the court could not go behind the judgment, but upon the whole record, the question was whether the judgment was warranted by law, and within the jurisdiction of the court.'"
It is also said in Ex parte McCown, 139 N.C. 95, 51 S.E. 957, 959, 2 L.R.A.,N.S, 603: "We cannot decide whether there was any merely erroneous ruling of the court or any irregularities in respect to judgment and procedure, as the writ of habeas corpus can never be made to perform the office of a writ of error or of an appeal. We are confined in our investigation to the question of jurisdiction or power of the judge to proceed as he did, and cannot otherwise pass upon the merits of the controversy. There must have been a want of jurisdiction over the person or the cause, or some other matter rendering the proceedings void, as this is the only ground of collateral attack. The law in this respect has been definitely settled, we believe, by all the courts."
In 39 C.J.S., Habeas Corpus, § 26, p. 478, et seq., it is said: "* * * it is the general rule, which in some states has been declared by statutes which have been held to be constitutional, and to be merely declaratory, and not in derogation, of the common law, that, where the trial court, as a court of competent jurisdiction, had jurisdiction of the offense and of the person *344 of defendant, and power to render the particular judgment or sentence, it cannot be collaterally attacked in habeas corpus proceedings, * * * and, if nothing has happened since the rendition of the judgment to entitle the prisoner to his release, the court should decline, for want of jurisdiction, to discharge the prisoner, and an order of discharge under such circumstances is void." People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260, 81 N.E.2d 900; People ex rel. Courtney v. Fardy, 378 Ill. 501, 39 N.E.2d 7; Eberwein v. Eberwein, 193 Md. 95, 65 A.2d 792; Graham v. Squier, 9 Cir., 132 F.2d 681.
In the case of Eberwein v. Eberwein, supra, the record of the court did not show how the petitioner plead, or whether he was tried by the court below or that the case was disposed of on a plea of guilty. Even so, the court held the petitioner was not entitled to have his petition for writ of habeas corpus granted.
In the instant case, before the minutes were amended, the record shows that a true bill of indictment had been returned against the defendant; that the case was called for trial; that the solicitor representing the State and the attorneys representing the defendant agreed that because of the nature of the case the courtroom should be cleared of all persons except court officers and witnesses in the case. The next entry shows that prayer for judgment was continued to the December Term of the court and that the defendant should remain in the custody of the State Prison Department until that time. The docket at the December Term shows a judgment imposed which was regular in all respects. There can be no question about the Superior Court having jurisdiction of the offense and of the person of the defendant, and the power to render the judgment imposed. Consequently, any omissions in the minutes of the court with respect to the procedure followed during the course of the trial could be supplied by amendment.
In light of these facts, we hold that the judgment in question was not void, and, therefore, could not be successfully attacked in a habeas corpus proceeding. Relief may be granted in a habeas corpus proceeding when the records of the court disclose that the court did not have jurisdiction of the offense or of the person of the defendant, or that the judgment imposed was not authorized by law. Such facts appearing on the face of the record are incurable and cannot be corrected by amendment.
We have held, under the questions previously discussed herein, that Judge Pless had the power to amend and correct the minutes of the August Term 1951 of the Superior Court of Macon County so as to make them speak the truth, and that his findings were supported by competent evidence. It follows that the record in this case, as amended, stands as if it had never been defective, or as if the entries had been made at the proper term. Galloway v. McKeithen, supra; Phillipse v. Higdon, supra; Mayo v. Whitson, supra.
In view of the authorities cited herein and our disposition of the first four questions posed, we hold that the order entered by Bickett, J. in the habeas corpus proceeding is not binding on the State, but that the sentence imposed by Rudisill, J., at the December Term 1951 of the Superior Court of Macon County, has been at all times since its imposition, in all respects, valid and binding on the defendant.
5. Accordingly, so much of the judgment of his Honor, Pless, J. as purports to re-sentence the defendant, is hereby set aside, but in all other respects it is affirmed.
6. In our opinion, the defendant, on the facts revealed on this record, is not entitled to be discharged from custody. Therefore, he will be remanded to the State's Prison to serve the sentence imposed *345 on him at the December Term 1951 of the Superior Court of Macon County.
Modified and affirmed
JOHNSON, J., not sitting.
RODMAN, J., took no part in the consideration or decision of this case.