Appellant insists that on original hearing, error was committed in holding that the judgment was not vitiated by the action of the trial court touching the special venire. The bill of exceptions, as qualified, shows the following:
". . . this cause was set for trial on the 5th day of November at the request of counsel for the State; that immediately thereupon the court ordered the clerk to issue the writ of venire; that the court instructed the clerk as to the number of men and the date of return thereof; that the court with a deputy sheriff and a deputy district clerk drew the number of men ordered in said writ; that the court has a written memorandum showing a setting of cases together with the date, number of veniremen ordered."
The statute requires that the clerk shall enter in the docket the proceedings and the date thereof. See Code of Crim. Procedure, Art. 650. The court is empowered to amend the record according to the truth. Revised Statutes, Art. 2015. When an order has been made, which is not entered in the minutes of the court, the entry can be made nunc pro tunc. Burnett v. State,14 Tex. 455, wherein the record is made to show, by order nunc pro tunc, the return of the indictment by the grand jury. Rhodes v. State, 29 Tex. 188; Bennett v. State, 80 Tex.Crim. Rep.. The necessity and requisites of an order for a special venire are set out in the statute, but no special manner is provided for making a record of the order at the time it is made. See Code of Crim. Procedure, Art. 655-658. It seems in the case before us that the judge, at the time of the order, made a written memorandum showing the order, its date and the number of venire men ordered, but that this was not noted on what he terms the "trial sheet," nor entered in the minutes at the time it was made, but that this was done by order nunc pro tunc. The office of an ordernunc pro tunc is to make a present record of something previously done though not recorded. Assuming that the entry may not be made *Page 401 except there be some written evidence of the original order, the bill before us, in our judgment, reveals the compliance with this requirement. There was a written memorandum made by the judge at the time, and in addition thereto a venire writ issued by the clerk at the time the order was made certifying, under the seal of the court, that the order had been made.
We have been referred to no new authorities in the motion for rehearing, and after giving due consideration to the arguments therein advanced, we are unable to find basis for a different conclusion from that expressed in the original opinion.
The motion is overruled.
Overruled.