Roberts v. State

Appellant was convicted of perjury and allotted two years confinement in the penitentiary.

Motion is made by the Assistant Attorney General that the appeal be dismissed because appellant's recognizance was not entered properly upon the minutes of the trial court. The matter is in confusion as to whether it was or was not so entered The transcript contains a recognizance. The State attacks the verity of this and says as a matter of fact it was not so entered. The judge certifies, as does the clerk, in addition to the record, that defendant and his sureties came into open court and were duly recognized in the amount fixed by the district judge. The only question presented from this phase of the motion is *Page 142 that this recognizance was not carried forward into the regular minutes of the term. The clerk certifies to his "rough minutes" and attaches it as an exhibit to the motion to dismiss showing that the recognizance was properly taken, but does not set out the recognizance in full. The motion to dismiss will not be sustained, but the case will be continued by this court to give opportunity to the trial court to have the recognizance properly entered. When this is done, the clerk will forward a certified copy to this court showing the fact of the entry. The defendant did what he could to have a recognizance; entered into it, as the judge certifies, in open court. This clearly entitled him to have his case considered on appeal, and the neglect of one of the officers to carry this into the minutes will not deprive him of his appeal, but the case will be continued that he may either have the recognizance entered upon the minutes, or a sufficient recognizance to be fixed by the judge. The clerk of this court will issue proper notice to the court below to have recognizance properly entered upon the minutes of the court at that court's early convenience.

There is also a motion to "strike out" some exceptions of appellant to give certain requested instructions, on the ground that the clerk certifies they were filed back by order of the court. Just what he means by this is not explained. The trial was had on August 3rd. When these charges were presented and exceptions taken to their refusal it was on the 3rd of August. Twenty-eight days later, the motion for new trial was overruled. The clerk certifies these matters were ordered filed back. If it is meant by this that the papers were presented to the judge at the time of the trial within the terms of the law and refused, as they show upon their face to have been, and the clerk neglected to put his file mark upon them at that time, it would not be filing these papers back to place the file mark on them as of August 3rd. They were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk. That was a sufficient filing, and the order of the judge instructing the clerk to place his file mark as of that date would not be a filing back. This would be but supplying an omission of the clerk and not filing back. If there is any contest insisted upon about this matter, the real condition of things should be made to appear by proper order of the court. Contests over matters of this sort by motions and affidavits and statements are not to be encouraged. If as a matter of fact the papers were not presented to the court at that time the court's certificate can show that fact. We understand it to be the rule that where papers are in the record and were not presented to the clerk for filing within proper time, but after the time has elapsed in which they should be filed, that fact can be shown. Where requested instructions refused by the court are shown to have been endorsed by him as refused on August 3rd, at the time of the trial, this court would take that as correct. The mere fact of the clerk failing to put his file mark on it at that time would not affect the legality of the filing of the exceptions. This motion as presented to strike out these papers will not be granted. The clerk of this court will issue the proper order of this court to the trial *Page 143 court to enter upon the minutes of the trial court the recognizance as entered into and to at once forward a certified copy of said recognizance.

Continued to complete record.