Page:Dakota Territory Reports Vol 4.djvu/432

 court to amend its record was sustained. Says the court (, J.:) **The plaintiff in error contends that his plea of former jeopardy should have been sustained on the ground that the court had no right to correct the record in the manner stated; and that, without such correction, the plea of former jeopardy would be good, because, as the record then stood, it did not appear that the jury had been discharged. The district judge sat at the trial of the case in the circuit court. The fact was one within his knowledge, and the knowledge of all present. The omission was a mere clerical one. Under the circumstances we can discover no error in the order to correct the record in accordance with the fact. The power of the court to amend its own record, nunc pro tunc, has long been recognized, and is well established. Gilmer v. Grand Rapids, 16 Fed. Rep. 708; Jones v. Lewis, 8 Ired. 70."

Upon this subject Bishop says: "On other principles, to correct a clerical error, to supply an omission of fact, or prevent an injury accruing through a delay of the court, and perhaps in some other circumstances, there is an undefined, yet limited, power of making amendments and nunc pro tunc entries at a subsequent term. There ought, in general, or always, to be something to amend by; yet, by some opinions, the court is not thus absolutely restricted as to the evidence." Bish. Grim. Proc. 1343, citing a great number of authorities.

Wharton also lays down a similar doctrine. Whart. Grim. PL & Pr. § 913.

We have no doubt that the power of amendment was correctly exercised upon the facts of this case.

The second error complained of relates to the charge of the court. Defendant contends that the charge is a necessary part of the judgment roll, and that in case of a failure to make it a part of the record, he is entitled to a reversal of the judgment on writ of error.

Section 446 of our Code of Criminal Procedure provides: "When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex