On November 4, 1917, a criminal complaint was filed before a magistrate of Ada county, charging appellant Ed. W. Douglass under C. S., sec. 8556, with having feloniously set fire to and burned a stack of hay, the property of one Henry Blucher, and he was held to answer the charge in the district court of Ada county. On November 30th thereafter the prosecuting attorney of said county filed an *144information charging appellant with having committed said offense on the fourth day of November. Appellant moved to set aside the information, which motion was sustained, and the clerk made an entry upon the minutes of the court January 9, 1918, to the effect that said information had been set aside.
On January 29th following, a second information was filed, wherein the offense was charged as having been committed on the fourth day of January, 1918, and to this information the appellant on the sixteenth day of March pleaded orally and in writing that he had already been acquitted of the offense charged, by the judgment of the court rendered on the ninth day of January, 1918, and further, that he was not guilty of the offense charged.
The cause was tried on April 2, 1918, and resulted in a disagreement. In September following the case was again tried, and a verdict of guilty returned. Thereafter a motion in" arrest of judgment and a motion for a new trial having been overruled, from said verdict and judgment and the order denying a new trial this appeal is taken.
Appellant makes numerous assignments of error, but it will not be necessary to consider all of said assignments.
Appellant contends that the court is concluded by the entry made by the clerk as of January 9, 1918, wherein it is recited that: “In this cause the motion to set aside the information heretofore filed against the defendant having been heretofore argued and taken under advisement, the court at this time rendered its decision, to wit: The motion to set aside the information be and the same is hereby sustained. ’ ’
C. S., see. 8865, provides that if a motion to set aside the information is granted, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated; or if he has deposited money instead of bail, that the same be refunded to him, “unless it directs that the case be resubmitted to the same or another grand jury.”
*145The court’s attention .was first directed to the manner in which its decision to set aside the information had been entered upon the minutes by the clerk, on April 8, 1918. The minutes of January 9th preceding, wherein the clerk had made the foregoing entry, had not been approved by the court, nor its attention called to the failure of the order to resubmit the cause to the examining magistrate. Upon the court’s attention being called tó this error in the minutes, it corrected the same by adding thereto the following:
“The present order of the court is that the motion to set aside the information be and the same is hereby sustained; that the case be and the same is referred back to the magistrate- with instructions to make upon the depositions in the case a written order of commitment, showing for what offense the defendant is committed, and also with instructions to have the answers read back to the witnesses and to have the same subscribed by them.
“The above minutes of the court and journal entries are by me approved, settled and signed in open court, for the first and only time, on April 8, 1918, and constitute the original and only minutes of the proceedings had and taken before me as a judge of the above-entitled court, and of the proceedings had and taken before and by the division of the above-entitled court over which I presided, on and for said ninety-second judicial day of said term of said court, to wit: Jan. 9, 1918, and constitute the original and only journal entries of said proceedings. This action in approving, setÜing and signing the above minutes and journal entries is had and taken ‘nunc pro tunc’ as of the date in question, to wit: Jan. 9, 1918.”
Appellant contends that- the foregoing entry made January 9, 1918, by the clerk on the minutes is the legal record of the judgment and order of the court in quashing said' information, and that since it does not show a resubmission of the cause to the committing magistrate, a motion to dismiss should have been sustained. It is further contended that the court was without jurisdiction to amend its minutes after the expiration of a term.
*146It is clear from the record that the purpose of the court in making the nunc pro tunc order was to make the record speak the truth as to the proceedings had in sustaining the motion to quash the information, and that there was no intention or attempt to supply any omitted action, for in the written opinion of the court found in the record, directed to the respective counsel as of the date of the clerk’s entry, the reasons are set forth for sustaining the motion to quash the information, and the manner directed in which the cause should be resubmitted to the committing magistrate. Furthermore, at the trial the defendant orally examined the judge of said court, whose testimony was conclusive that an order of resubmission was made at the time the information was quashed, and that the clerk’s minutes of the proceedings of January 9, 1918, do not state the entire order as made on that day.
C. S., see. 6477, provides that: “Every court has power: .... 8. To amend and control its process and orders, so as to make them conformable to law and justice.”
In State v. Winter, 24 Ida. 749, 135 Pac. 739, it is said that: “It is a familiar and established doctrine that courts always have jurisdiction over their own records to make them conform to the facts and what was actually done at the time. ’ ’
In Gagnon v. United, States, 193 U. S. 451, 24 Sup. Ct. 510, 48 D. ed. 745, it is held that the power to amend its own records to correct mistakes of the clerk or other officers of the court, inadvertencies of counsel, or to supply defects or omissions of the record, even after the lapse of the term, is inherent in courts of justice.
In Kaufman v. Shain, 111 Cal. 16, 52 Am. St. 139, 43 Pac. 393, it is said that every court of record has inherent right and power to cause its acts and proceedings to be correctly set forth in its records. The clerk is but an instrument and assistant of the court, and his duty is to make a correct memorial of its orders and directions, and whenever it is brought to the knowledge of the court that the record does not correctly show the orders or directions which were *147in fact made by the court at the time they were given,, the authority of the court to cause its records to be corrected in accordance with the facts is undoubted.
To the same effect are the following eases: Wright v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. ed. 865; Gonzales v. Cunningham, 164 U. S. 612, 17 Sup. Ct. 182, 41 L. ed. 572; United States v. Vigil, 10 Wall. 423, 19 L. ed. 954; Balch v. Shaw, 7 Cush. (Mass.) 282; Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 189.
In the exercise of this power the court is not authorized to do more than make its records correspond to the actual facts, and cannot under the form of amendment of its records correct a judicial error, or make of record an order or judgment that was in fact never given. The power of a court to change its judgment, as well as the time within which such change can be made, depends upon different principles.
In the case at bar, it was -clearly within the power of the trial court to correct its record so as to make it conform to the actual order made, even after the close of the term. The power of the court to make such corrections is not lost by lapse of time. (Coop v. Northcutt, 54 Mo. 128; In re Tolman, 101 Me. 559, 64 Atl. 952; Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639.) This power extends to criminal as well as civil cases. (State v. Winter, supra; People v. Ward, 141 Cal. 628, 75 Pac. 306.)
In addition to - his plea of not guilty, appellant also pleaded former acquittal, and the court instructed the jury that they should find against the defendant upon this latter plea. In this we think the court erred.
C. S., sec. 8903, provides that: “An issue of fact arises: .... 2. Upon a plea of former conviction or acquittal of the same offense.”
C. S., sec. 8904, requires that in criminal cases: “Issues of fact must be tried by a jury, unless a trial by jury be waived.....”
The learned trial judge appears to have taken the view that he was warranted in instructing the jury to find against the *148appellant upon his plea of former acquittal, for the reason that the evidence offered in support of such plea was not admitted.
In State v. Gutke, 25 Ida. 737, 139 Pac. 346, this court held that: “'Where a defendant on a criminal trial enters a plea of not guilty and also of former acquittal, the jury should be instructed by the trial judge to render a verdict on both pleas, and it is error for the court to accept a verdict of guilty without also requiring the jury to return a verdict on the defendant’s plea of former acquittal.”
In State v. Crawford, 32 Ida. 165, 179 Pac. 511, it is said that: “A demurrer to a plea in a criminal case is unknown to the law of Idaho, and an order sustaining such a demurrer is a nullity and does not dispose of the plea. A plea of once in jeopardy presents an issue of fact to be tried by a jury, unless trial by jury be waived as by law provided, and a judgment of conviction entered while such plea is pending will be reversed.”
We think that the trial judge was without authority to take the issue of fact raised by defendant’s plea of former acquittal from the jury.
In State v. Peck, 14 Ida. 712, 95 Pac. 515, it was held under C. S., sec. 8963, that: “An instruction directing a jury to acquit is erroneous, as the court is only authorized to advise the jury.”
If a trial court is without authority to instruct a jury to acquit, a fortiori it is without authority to direct a jury to find against a defendant, either upon his plea of not guilty or of former acquittal. (Territory v. Neilson, 2 Ida. 614, 23 Pac. 537; State v. Wright, 12 Ida. 212, 85 Pac. 193; State v. Downing, 23 Ida. 540, 130 Pac. 461.)
Appellant also assigns as error misconduct of the prosecuting attorney. In order to properly consider this assignment, the facts and circumstances upon which the state relies for a conviction should be taken into account.
Appellant had been employed by the prosecuting witness, Blueher, to feed and care for sheep upon Blucher’s farms, and later assisted in looking after these sheep' while on the *149public range, until some time in tbe latter part of September, 1917. Appellant having expressed some dissatisfaction at being required to take charge of a band of sheep without the assistance of a certain dog he had been accustomed to have, he appears to have offended Blucher, who discharged appellant and brought him from the summer range to his home in Boise, which required a day’s drive in Blucher’s automobile. Upon their arrival at Boise, Blucher and appellant amicably settled their accounts, without any apparent feeling of ill will manifested on the part of either of them.
Soon after appellant left Blucher’s employ he secured employment upon the Haga ranch, which was in the direction of, but some miles from, the Blucher ranch, where the hay was burned on the night of November 4, 1917.
The state offered no direct evidence tending to show that appellant had been in the vicinity of this haystack at or near the time it was destroyed. The fire occurred some time between 2 and 3 o’clock Sunday morning, November 4, 1917, and upon Blucher, who lived in Boise, being notified by his foreman that this hay had been burned, he, with the sheriff and others, repaired to the vicinity of the destroyed haystack. There they discovered the footprints of a man leading to and from the enclosure containing this haystack, to the outside inelosure of Blucher’s field, where it appeared that a mare had been tied to the fence. These footprints had been made by a person wearing hobnailed shoes. It was claimed by the state’s witnesses that the tracks of the animal in question were of a peculiar form and size, by which they could be readily traced, and that they were traced through the sage-brush and over the public highway to the Haga ranch, where a riding pony was kept which made a similar track. It was also claimed that the track of this animal corresponded in size with the track that had been traced from the vicinity of the burned haystack, and Blucher made a memorandum of the dimensions of the animal’s track, putting the same in a note-book. The appellant, who was in a tent near the house on the Haga ranch, had on a pair of *150hobnailed shoes which it is claimed corresponded with the tracks found at the haystack.
Later in the day the sheriff and others went to the vicinity of this fire, together with a special agent of the department of justice, and they made, or attempted to make, plaster casts of the footprints of the person and of the animal found there. The testimony regarding these tracks and the plaster casts made from them constitute substantially all of. the evidence tending to connect the appellant with the commission of the crime.
During the trial of the cause, and after these plaster casts and other exhibits had been offered in evidence, together with a memorandum-book upon which the prosecuting witness had made some notations, evidently relating to the measurements made of the horse’s tracks, only a part of which book had been admitted in evidence, and during a recess of the court, while the defendant and his counsel, the judge and a part of the jurors were absent from the courtroom, the prosecuting attorney passed to the remaining jurors these plaster casts and this memorandum-book for their inspection, and they proceeded to examine the same. Appellant’s counsel, returning to the courtroom while the prosecuting attorney was in the act of handing out these exhibits to the jurors, remonstrated with him for having done so, and immediately reported the transaction to the judge, who was called back to the room, and promptly directed counsel for the state to remove from the memorandum-book which he had given to the jurors that part which had not been introduced in evidence. These facts were brought into the record by the affidavits of appellant’s counsel and of the deputy clerk, and subsequently settled in a bill of exceptions.
These affidavits show that counsel for the state, while in the act of handing these exhibits and the memorandum-book to the jury, was talking to them, but none of the affiants were able to state what, if anything, he said. In his counter-affidavit, the prosecuting attorney denies having said *151anything to said jurors other than to say, “Here are the rest of the exhibits,” or words of similar import.
Appellant further complains that the prosecuting attorney, in his closing argument, imputed to the appellant the use of vile language at the time of the conversation between Blucher and appellant in September preceding, when Blucher told appellant that his services would no longer be required, and that he would take him to Boise on the following day. Evidently the purpose of imputing to appellant the use of the objectionable language was to create in the minds of the jurors the impression that appellant harbored such ill will toward Blucher, the prosecuting witness, as would cause him to use this alleged bad language, and showed a motive for burning Blucher’s hay. Exception was taken by appellant’s counsel, but the prosecuting attorney insisted that it should be left to the jury to determine whether or not the appellant had used such language. The reporter was called and the record read, and it was ascertained that no such language, or language of an offensive character, had been used by appellant.
In State v. Irwin, 9 Ida. 35, 71 Pac. 608, 60 L. R. A. 716, the authorities are extensively reviewed, and the rule is there announced by this court that: “It is the duty of the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is submitted to the jury, and above all things he should guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced.....He should never seek by any artifice to warp the minds of the jurors by inferences and insinuations.”
In State v. Givens, 28 Ida. 253, 152 Pac. 1054, it was said to be highly prejudicial to the substantial rights of the appellant, and to constitute reversible error, for the prosecuting attorney, in his final argument, to impute to the defendant on trial the crime of embezzlement, when there was no evidence in the record to sustain such charge.
It is doubtless true that where the evidence is so strong and convincing that the jury could not have reached any *152other verdict than that of guilty, taking into consideration all of the circumstances, misconduct of the prosecuting attorney, even though flagrant, may not justify a reversal on this ground. But where, as in this case, the evidence is purely circumstantial, and not of a positive character, the misconduct of the prosecuting attorney may have influenced the verdict of the jury; and even though the trial judge has attempted by instructions to cure the same, the jury may retain such an impression that it may well be said that the misconduct, rather than the evidence, was the determining factor in their decision.
In State v. Tilden, 27 Ida. 262, 147 Pac. 1056, this court approves the language of Chief Justice Sharkey in Hare v. State, 4 How. (Miss.) 187, which might be applied to the alleged misconduct of both the prosecuting attorney and the jury in this case. The rule as there announced is thus stated: “If the purity of the verdict might have been affected, it must be set. aside; if it could not have been affected, it will be sustained.”
When the foregoing facts and circumstances are taken into account, we think it may fairly be said that the purity of the verdict in this case might have been affected by the conduct of the prosecuting attorney and of the jurors, who not only received and examined exhibits during the recess of the court, contrary to its admonition, but were also given said memorandum-book that had not been admitted in evidence.
For the foregoing reasons, the judgment of the lower court is reversed and the cause remanded, with instructions to grant appellant a new trial.
Rice, C. J., concurs. Dunn, J., concurs in the result. Budge, J., did not sit at the hearing and took no part in the decision. McCarthy, J., having presided at the trial below, took no part. (June 29, 1982.) Criminal Law — Trial — Flea op Former Acquittal — Question op Law or Fact — Setting Aside Information — Order op Resubmission to Committing Magistrate. 1. When the tri&l court, in setting aside an information, orders a resubmission to the committing magistrate, it is not error to incorporate in such order instructions to have the answers of the witnesses at the preliminary hearing read to them and to have the same subscribed by them. 2. When the record shows that a preliminary examination has been held and that the magistrate found that a public offense had been committed and that there was probable cause to believe the defendant guilty thereof, the trial court has authority, on quashing the information and referring the case back to the committing magistrate, to instruct such magistrate to make upon the depositions a written order of commitment, showing for what offense the defendant has been committed. 3. Whether a plea of former aequittal raises a question of law or fact depends on the circumstances of the case and should be determined by the rules and principles applicable to issues generally. 4. Where the issue raised by a plea of former aequittal involves solely a question of law and such question is determined adversely to defendant, the trial court may properly take such question away from the consideration of the jury or it may instruct the jury to find against the defendant on the plea of former acquittal. 5. Where the trial court, on setting aside an information, refers the case back to the committing magistrate, defendant cannot successfully plead former aequittal to a new information, since C. S., see. 8867, provides that “an order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense.”