THE PEOPLE, Respondent, v. JOHN MURBACK, Appellant, 64 Cal. 369

McKee, J. Appeal from a judgment of death pronounced against the defendant upon a conviction for murder in the first degree, and also from an order made subsequent to the judgment. The assignments of error are that the court exceeded its jurisdiction in making the order appealed from, and that it misdirected the jury by .the following instructions, namely:— “1.

You can find defendant guilty of murder in the first degree, or guilty of murder in the second degree, or guilty of manslaughter, or you may render a verdict of not guilty; and it is for you to decide which one of those verdicts you may render; but if you do find the defendant guilty of murder in the first degree, you have the discretion to determine the nature of his punishment; and if in your sound judgment and discretion there is any fact or circumstance in the case which ought to mitigate the extreme penalty of death, you will by your verdict indicate the same; but if you find no such mitigation in the facts of the case, and think the death penalty should be inflicted, you will simply find him guilty of murder in the first degree.” “ 2.

No words of reproach, however grievous, are sufficient provocation to reduce the offense of an intentional homicide with a deadly weapon from murder to manslaughter.” Objection is made to the first instruction that the court in saying to the jury, “ but if you do find the defendant guilty of murder in the first degree,” etc., virtually announced that the defendant was guilty of that crime; and that by the other parts of the instruction the jury were improperly restricted in the exercise of tlicir power of discretion to determine the punishment to be inflicted upon the defendant.

There was no assumption of the guilt of the defendant in the language employed by the court. The jury were properly directed that they could, upon the indictment, find the defendant guilty of any offense included within the crime for Avhich he Avas indicted; but if they should find him guilty of the highest offense, namely, murder in the first degree, it would be their duty to decide AArhether he should suffer death or confinement in the State prison for life, and that Avas to be determined at their discretion. With this power of discretion a court cannot interfere.

The jury should be left entirely free to act according to their judgment. If they see fit to exercise the power at all, they have the exclusive right to determine, within the limits prescribed by the law which gives them the poAArer, the punishment for Avhich the defendant ought to be sentenced. And Ave find nothing in the challenged instruction Avhich limited or restrained them in the exercise of that power. The second instruction Avas applicable to the case, and Avas a correct explanation of the law of the subject to Avhicli it related. (The People v. Turley, 50 Cal. 470) The People v.

Butler, 8 Cal. 435; Wharton’s Criminal Law, 368.) The question upon the appeal from the order made after judgment arises out of the folloAving facts: — The indictment charged that the murder Avas committed on the 26th day of November, 1882. Of that crime the defendant was convicted, and upon the conviction, judgment of death Avas regularly pronounced.

But the clerk, on making up his minutes of the proceeding in court Avhen the defendant appeared , for sentence, entered, as part of the proceeding, that the court informed the defendant “of the indictment found against him for the crime of murder committed on November 26, 1883.” This entry did not express the fact; and, after discovering the mistake Avhich had been made, the court, upon notice to defendant and his counsel, ordered the entry to be corrected by changing the figures “ 1883 ” to “ 1882,” so as to express the truth. The order to that effect was made March-12, 1883.

Meantime the appeal had been taken from the judgment; and it is contended that the court had no jurisdiction, pending the appeal in this court, to make the order. But the true statement, which was made by the court to the defendant, of the nature of the charge made against him, and of which he had been convicted, although necessary as preliminary to pronouncing judgment (§ 1200, Pen. Code), was no part of the judgment pronounced; and a mistake made by the clerk in the entry of the statement on the minutes of the court Avould not invalidate the judgment.

The mistake Avas, therefore, one which could be corrected at any time, Avhile the record of the case was subject to the physical control of the court, so as to make the record speak the truth. The poAver of the court in that regard was not suspended by the appeal. (Rousset v. Boyle, 45 Cal. 64; Sheldon v. Gunn, 57 Cal. 40; Boyd v.

Burrel, 60 Cal. 284.) Besides, as the defendant Avas sentenced for the crime for which he had been indicted and convicted, by a judgment regularly pronounced, the error as to date in the entry referred to would be so evidently a mere clerical mistake, which in no way prejudiced the defendent in any substantial right, that the judgment itself would not be reversed, even if the error had not been corrected. (§ 1404, Pen. Code; People v. Sprague, 53 Cal. 491; People v. Gilbert, 57 Cal. 96; People v. Brotherton, 47 Cal. 338; People v. Colby, 54 Cal. 37.) Judgment and order affirmed.

Ross, J., Sharpstein, J., Myrick, J., and Thornton, J., ' concurred.