Page:Dakota Territory Reports Vol 4.djvu/424

 People v. Gaines, 52 Cal. 479; Douglas v. State, 3 Wis. 820; Davis v. State, 38 Wis. 487; Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 483; Grigg v. People, 31 Mich. 471; State v. Saunders, 53 Mo. 321; Com. v. Tobin, 125 Mass. 203; Smith v. State, 51 Wis. 615; Temple v. Com. 14 Bush. 769, 29 Am. Rep. 442; State v. Muir, 4 Pac. Rep. 812, (Kan.); Stewart v. People, 23 Mich. 63; Messner v. People, 45 N. Y. 1; Mullen v. State, 45 Ala. 43, (6 Am. Rep. 691;) People v. Trim, 37 Cal. 274.

That the omission of charge of the judge from the record, as required by Section 446 Code Crim. Prac. we cite the above authorities, and especially: People v. Corbell, 28 Cal.; People v. Gaines, 52 Cal.; Grigg v. People, 31 Mich.; Com. v. Tobin, 125 Mass.; Davis v. State, 38 Wis.; Smith v. State, 51 Wis.; Messner v. People, 45 N. Y. 1; Matter of Ring, 28 Cal. 247; Hopt. v. Utah, 114 U. S. 488.

''Geo. Rice, Attorney General'' for defendant in error.

It is conceded that if the district court has no power to amend a record to conform to and show truthfully the proceedings actually had on a trial of a cause, then the first five errors assigned by plaintiff in error are fatal, and this case must go back. If the district court has this power, then those first five errors assigned by plaintiff in error, have been cured by the amendments, and need no further consideration.

In the case of Anna Belaska v. State of Minnesota, the court, in giving the opinion, say: "It not being disputed that the proceedings set forth in amendment to the record were actually had on the trial of the cause in the court below, there can be no question as to the right of the lower court to order the amendment." 3 Minn. 427, Gil. 313; Code Crim. Proc. 142; Anderson v. Parker, 6 Cal. 490; 13 Cal. 490; 15 Cal. 9; 11 Iowa 66; Pride v. Wormwood, 21 Id. 227; Hawkes v. Davenport, 38 355; O'Connell v. Coher, 44 Id. 48; Wyman, Ex. v. Buckstaff et al. 24 Wis. 477; 22 Wis. 95; 5 Wis. 386; 21 Wis. 340; 15 Wis. 206; 31 Cal. 340; 12 Ark. 63; 9 Ala. 547; 1 Fla. 437; 2 Ala. 161; 35 Me. 138.

The record, as amended, shows that the charge of the court below was given orally, and was taken down by the court