This case raises a question of procedure on appeal, which, in this State, is mw. I am well enough satisfied that my associates, in their opinion, have done no real injustice to appellant, but I cannot know that judicially, and besides, am unwilling to depart from the heretofore inflexible rule of the Court, that the record must in all cases show, affirmatively, that the grand jury was duly empannelled and sworn, and brought the indictment into Court. This is a matter of great importance, inasmuch as the bill of rights in our Constitution has provided, with some exceptions not touching this case, that no one shall be held to answer a criminal charge unless on the presentment or indictment of a grand, jury. Heretofore this Court has guarded this right* very firmly by refusing to approve any conviction, unless it should appear that it had been respected. It does not now propose to dispense with a showing that a grand jury had been empannelled and an indictment properly found. But it adopts new modes of proof, heretofore considered wholly incompetent, and establishes a precedent, which, harmless perhaps at present, may come, in more turbulent and arbitrary periods, to endanger the liberties of the subject.
Neither the indictment itself nor its endorsements can be made evidence that a grand jury was empannelled and brought it into Court, without violation of the previous ruling of the Court. It had been recorded as required by law, but the record was only intended for its own preservation against loss or abstraction, and not to make it evidential of previous proceedings. The Clerk before recording it is not required judicially to determine that it had been properly brought into Court, by a grand jury empannelled and sworn.
Further with regard to the Judge’s endorsement for bail. It does not, by any means, preclude the prisoner from questioning the validity of the procedure by which he has been called to answer. It is not made in his presence, and is directed to the sole object of securing his appearance. It may be very true that a prudent and conscientious Clerk would not mark an instrument filed, and record it, unless he had assurance that it was a proper one, and a good Judge would not require bail without like .assurance on his part; but constitutional guaranties are intended to guard against possible abuses. Nothing endorsed upon the indictment nor apparent on its face, would be, separately, evidence of the existence of the proper record, and cannot become so cumulative-
We cannot know that the records have been burnt or destroyed. The certificate of the Clerk in response to the certiorari cannot be taken as evidence of any fact he may state by way of explanation or excuse. Keller v. Killain et al, 9th Iowa, 329; Freeland et al v. Board of Supervisors, 27 Ill., 303. It is the duty of the Clerk simply to obey the writ by sending up the copy of all he has, and to' certify to that effect; and the Appellate Court cau only act on what he sends, without any regard to extrinsic matters which he may also choose to certify. It incidentally appears in the record that the Court House had been burned, but nothing is said of the records. It is going a great way to presume from that, that the records of this case had been burned with it, and that if they had not been burned they would have shown that the indictment had been properly found. In the ease of Graham v. State, 43 Texas, 552, the Court said : “When the liberty of a party is jeopardised, * * * the Court cannot supply, by presumption, a defect in the record, that the statute requires shall verify itself by inspection.” We have always required that the record should show by inspection, the matter which is defective here. But if it were properly shown that the records in this case had been destroyed by fire, it would not justify this Court in dispensing with record evidence that a grand jury had been empannelled, and had brought in the indictment. It would not necessarily follow that a person properly convicted would escape, and if it did, it would perhaps be a lesser evil than for a person not properly indicted and convicted, to be cut off by accident, from the opportunity of questioning the proceeding — which he would be if these presumptions be allowed, and he cannot prove a negative,
Until the Legislature may provide some better means of meeting such accidents, we ought, I think, to adhere to the common law rules, and require the record to be amended, if it may be done, so as to show the facts, and then to act upon that. I do not think any accident, or urgent necessity for the vindication of the law in a particular case, should impel us to make exceptions to wholesome rules, either by presumptions which endanger the rights of freemen, or upon facts imported into the case from the unauthorized certificates of clerks, or from briefs of counsel.
The Circuit Court had inherent power, independently of any statute, to supply the defective record by nunc, pro tuno entries, so as to make it declare any fact which truly happened; and such amended record brought here on certiorari might be considered. It might and should have been done, on suggestion of the State’s Attorney, after the destruction of the Court House, and before the trial. The Court, on being advised of the loss, ought to have required it to be done, before allowing a trial on an indictment which had no record to support it. It might have been done after the appeal. It may be done now, and the amended record brought up. ¥e have no right to assume that it is impossible as a matter of fact. That does not appear in the transcript. I do not think we should waive all these things, and indulge in presumptions, for the sake of dispatch, or to save expense, or for any other reason.
In Freed v. State, 21 Ark., 226, which was a case of murder, an amended record was brought up on certiorari. It was objected there, that the Court had no power to cause the record to be amended after the appeal was granted. Chief Justice English, delivering the opinion, said there was nothing in that objection — that the instances were frequent where it had been doné after appeal or writ of error, citing McNeil v. Arnold et al, 17 Ark., 157, in which also he had delivered the opinion of this Court. In the latter ease he remarked that the power of the Circuit Court to amend its record, so as to make it speak the truth, and the mode of doing it had been sufficiently discussed and settled in several cases which he cites. One of these cases is Arrington v. Conroy et al, Mr. Justice Hanley delivering the opinion, 17 Ark., 100. It was there held that this power of the Court did not arise from the statute of jeofails, but was an inherent power, enabling it to amend in whatever might be necessary to make the record speak the truth, whenever required by the ends of justice.
If it be true that this indictment was found by a proper grand jury and brought into Court, the ends of justice repuire that the record should be made to show the facts. The mode pointed out in our decisions is by nunc pro tunc entries. There never was needed, in any State, any act to enable the superior Courts, in either civil or criminal matters, to supply the omission or defects, or correct errors in their records, so as to make them speak the truth, either at the same term, or any other term, or thirty years afterwards.
To the same effect is King and Houston v. State Bank, 4th English, 187, in an opinion delivered by Mr. Justice Scott. The power is there put upon very high grounds and made very extensive in its application; and the most eminent of English jurists are quoted in its support.
There cannot be a shadow of doubt of the power of the Perry Circuit Court to make its records show the truth in the matter of this indictment. Of the practicability of it, we cannot judge, from anything we know.
In the case of Buckman v, Whitney and Woods, 24 Cal., 267, it was held that the Supreme Court had no power over the records of the Court below and could no order to supply a lost record, but that the duty v^Hpithin the province of the District Court, and the power was not affected nor suspended by the appeal. It still controlled its own records and had capacity to supply their place when lost, and should do so on proper application. It will be seen that the power extends beyond mere amendment of clerical errors, extending to supply the place of records that have been lost. It meets the requirements of the case in judgment. The English cases are, some of them, cited in Dubois v. Thomas, 14th South Carolina Reports, 30, which was a case like this, of a record lost or destroyed. In King v. Bolton, 1 Stra., 140, a stolen record was supplied by the King’s Bench. In Evans v. Thomas, 2 Stra., 833, a judgment roll, lost after being docketed, was restored. Also in the case of Dayrell v. Bridge, 2 Ib., 1264, a new postea was ordered to be made out in place of a lost .one; and in Douglass v. Yellof, 2d Burr, a judgment which had been entered and lost for thirty years was restored and entered nunc pro tunc. The same powers devolve on the superior Courts of law in the United States. Dubois v. Thomas, (supra).
I think we should either adhere to the rule that the record should show the empannelling of the grand jury and the finding of the indictment, or abandon it altogether. I think the former best.
There is no reason furnished for dispensing with it, in this case, of which we can take judicial cognizance. If it were certain that the record was burned, the Circuit Court has the power to restore it, and show the truth, and bring up the amended record on certiorari, and the State should do that. The onus is on her, otherwise it can never appear affirmatively, as it must, that the appellant has been constitutionally convicted.
I think the appeal should be suspended until a term of the Perry County Court may have passed, to enable the State to do this. If she cannot, now, it is very certain she might have done it while the matter was fresh, and that appellant should not suffer for the neglect. In that case he should be discharged, even if wo were morally sure that he belongs to the ninety-nine, of which the cautious old English maxim -speaks. There was a profound wisdom at the bottom of those old maxims, however absurd they may now appear, in an age rather zealous to punish all offenders speedily, for the public good. They were the seeds from which grew the wonderful Saxon Constitutions — the fairest nurseries of personal freedom surrounded by the sturdiest ramparts the world has ever known.
I fear the action of the Court in this case is premature and erroneous; and that it will make an unsafe precedent. . The English liberty which we inherited, would never have been preserved to posterity, to be built into our constitutions, but for the fidelity with which her courts maintained its theories and preserved its forms under all circumstances.