dissenting:
The opinion in this case repudiates and abandons a legal principle that has been the law of this Commonwealth for at least 130 years, has been approved and adhered to in every case since decided and not until now ever questioned or found wanting.
That rule is that after the term at which a final judgment has been entered, courts cannot make amendments in their records except where there is something in the record by which they can be safely made, and that such amendments cannot be made upon the individual recollection of the judge or upon proofs aliunde.
That rule is the handmaiden of the statutory mandate, almost as old as the rule itself, that “The proceedings of every court shall be entered in a book kept for the purpose to be known as the order book,” and signed by the presiding judge. Code § 17-27.
That safe and certain rule clothing judicial records with the dignity and integrity which they ought to have, and which they have long been thought to possess, is now abandoned, and there is now adopted in its place what is said to be the rule in a majority of the courts that in allowing amendments “the court may act on any competent evidence.”
That is to say, by any competent evidence the integrity of a solemn order of a court of record, duly spread on the record books and signed by the judge, may thereafter be stripped away and the order amended or contradicted and made to say exactly the opposite of what it does say, as for example in the present case that twelve jurors tried this defendant instead of eleven, as stated by the order entered more than four years ago.
*295What sort of evidence will hereafter be competent evidence to work such change or contradiction? Presumably any oral or written testimony from a source deemed reliable by the judge who hears the matter, such as the statement of the deputy clerk in this case that “12 men sat in this case,” or the recollection of the judge or the testimony of a bystander. Changes and corrections which heretofore could be made only when the record of the case showed they should be made, may now be made on any competent testimony, and what was heretofore certain and definite becomes now of uncertain force and effect.
When this court made the rule that has been in effect so long, and which is now discarded, it was not ignorant of the fact that other courts followed a different rule. In Barnes v. Commonwealth, 92 Va. 794, 801, 23 S. E. 784, 786, this court said that “it is clear that under our statutes, decisions, and practice, whatever may be the rule in other jurisdictions, they [the courts of this State] can only make amendments in cases in which there is something in the record by which they can be safely made, and that amendments cannot be made upon the individual recollection of the judge, or upon proofs aliunde.”
That principle was quoted and approved as recently as Teasley v. Commonwealth, 188 Va. 376, 382, 49 S. E. 2d 604, 606; and without exception has been adhered to and applied in the long line of cases cited in the majority opinion.
In the present case the Attorney General says in his brief that the principle established and applied in this long series of cases is “the wisest and safest doctrine to follow,” and he does not request this court to reverse these prior holdings, his contention being that the clerk’s minute book and the sheriff’s list of jurors come within the scope of the word “record” as used in these former cases.
As long ago as 1826, in Commonwealth v. Cawood, 2 Va. Cases (4 Va.) 527, it was held that the clerk’s omission to record the finding of an indictment could not be supplied by evidence outside the record even though the proffered evidence was the indictment itself, endorsed a true bill by the foreman of the grand jury. The court said the proof required was “record proof” and that the indictment was no part of the record until the finding of it was recorded on the order book.
In Gilligan v. Commonwealth, 99 Va. 816, 821, 37 S. E. 962, 963, decided more than fifty years ago, Judge Keith for that court said *296that “Cawood’s Case has remained unquestioned from the time it was decided in 1826, has been frequently cited with approval, and we have no disposition to disturb so venerable a landmark in our criminal jurisprudence.”
We may ask what has happened now, and since Teasley v. Commonwealth, decided in 1948, to require the destruction of this venerable landmark that has stood the test of so many decades, and replace it with a rule that opens wide the doors to attack on the solemn statutory record of the proceedings of a court, and to change and contradict that record without limitation of time and upon evidence outside of the record, emanating it maybe from the fallible memory or the fraudulent testimony of witnesses. If the change is in the interest of justice in this case, it may just as readily be the instrument of injustice in the next. If it serves the Commonwealth in this case, it may just as effectively serve a guilty defendant in the next.
A rule so long established and so frequently applied “should not be departed from except for the most convincing reasons.” Crafts v. Broadway Bank, 142 Va. 702, 710, 128 S. E. 364, 367. Norfolk County v. Duke, 113 Va. 94, 73 S. E. 456.
The reason assigned for the change that a majority of courts apply a different rule seems to me no more convincing now than it was to the judges of this court who established the rule and those who have followed it for these 130 years.
It is clear that the clerk’s minute book and the sheriff’s list relied on by the trial court for amending its former order was evidence aliunde within the rule heretofore existing in this Commonwealth.
The deputy clerk did not testify that he kept the minute book that was produced at the trial. He testified that the clerk kept the minute book and in his own possession; and in this particular case he, the deputy clerk, wrote the minutes in his own handwriting in this book. Regardless of who wrote it, or who kept it, there is no provision of law, statute or otherwise, which requires a clerk to keep a minute book, and admittedly many of the clerks of courts of Virginia keep no such book. When kept it is only a private record or a memorandum of the clerk, made for his own guidance in performing his duties under the requirements of the statute. Code § 17-27. The minute book is not made under the control and direction of the court and is not in any manner approved or identified by the court. It is only the clerk’s personal record, not a part of the court record, and when offered as proof to amend or correct an order made at a term that has *297ended, it is necessarily evidence aliunde, extrinsic evidence from a source other than the record.
It is clear also that the “LIST OF JURORS” was no part of the record. The deputy clerk did not state that this list had been kept with the case file in his exclusive possession. He said only that it had been kept in the exclusive possession of the clerk. It was not the list for the venire facias provided for by §§ 19-171 and 19-173 of the Code. The evidence does not show by whom it was prepared, but it was apparently a list for use by counsel in striking off jurors. If of any value it stood on no higher ground than the testimony of the deputy clerk that “12 men sat in this case,” which was wholly inadmissible under what until now was the Virginia rule.
In the order of April 24, 1951, recorded in accordance with the statute, the court stated that a jury of eleven named persons were sworn to try the case, heard the evidence and returned the verdict which was therein recorded, and on which the judgment of conviction and sentence was entered. To amend that order now, on the basis of the evidence furnished by the clerk’s minutes and the sheriff’s list, is to allow that order, after the lapse of more than four years, to be contradicted by the minutes and the list, neither of which is a record recognized by the law, neither of which is a part of the record of the case, and both of which constitute evidence extrinsic to and outside of the trial record. Not only so, but to say, as does the amending order of July 7, 1955, that Emerson Macon was one of the jurors sworn to try the case, heard the evidence and returned the verdict, must be based not on the minutes or the list but purely on an inference drawn from the presence of that name on the minutes and the list, contrary to the principle stated in the Gilligan case that in trials for felony “courts cannot resort to any presumption to supply the omission from the record of that which should appear by the record.” 99 Va. at 819, 37 S. E. at 963.
In this day of widespread use and frequent abuse of the writ of habeas corpus, it seems less desirable now than at any time in our judicial history to overrule the principle so long adhered to that such an amendment as the one now allowed should be made only when the supporting proof is in the record. To do so is further to strip from the solemn order of the court the integrity of its findings and recitals and allow it to be contradicted and changed on the basis of extrinsic evidence limited and defined only by what the exigencies of the case would seem to require.
*298By this decision the rule of stare decisis as it has heretofore applied to the unimpeachability of judgments by evidence aliunde, adhered to in the Teasley case and other decisions, is set at naught. Hereafter judgments will have less stability and integrity and must necessarily inspire less public trust and confidence.
I think our long-established rule is the better and safer rule and that we should adhere to it in this case and hold the nunc pro tunc order of July 7, 1955, to be of no effect.
Mr. Justice Miller joins in this dissent.