Dixon v. The Judge of the 2nd Judicial Circuit, 4 Mo. 286

Opinion of the court delivered by Tompkins J. The counsel for the petitioner concede that in general a record cannot be contradicted. But they contend that the third

section of the fifth

article of our constitution, c°nfers on this court the power of which they now claim the exercise. That

section reads thus: “The supreme court shall have a general superintending control over jj inferior courts of law.

It shall have power to issue writs oí habeas corpus, mandamus, quo warranto, certi-orari, and other original remedial writs, and to hear and determine the same.” If indeed'this court can, under this provision of the constitution command a judge of the circuit court to alter hte record; so as to conforte tfl what it may be told is the truth, then it would seem that there is no use for a court to find the facts of each particular case, for the losing party might say that the verdict was in truth found for him when the court had caused one to be entered on record against him; and this court might be required to hear again the testimony, or at least to call before it, the jury to ascertain what was the verdict.

Sucha power conferred on this court by the constitution, would ■ have been but opening a wide door to anarchy. The second

section of the same

article of the constitution, declares that the supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only. It is not pretended that this is an except-' ed case» But it is contended that unless this court will assume such power, the petitioner may suffer great hardships, and might indeed have been executed, had he been found guilty of murder; for say the counsel, the jury may find a verdict of “not guilty,” and the court may cause a verdict of guilty to be entered on the record.

Prom the earliest days of the history of judicial proceedings, the courts have had it in their power to falsify the record in this manner, and if our convention intended the superintending control given by the third

section to cure such an evil, they certainly provided a very inefficient remedy. For a prisoner might be condemed and hanged in the vacation of this court; this court then, if designed to take this liberty with records of the courts of original jurisdiction, should have been continually in session. It seems then that the convention intended that this court should superintend and control the circuit court in such manner only as is directed by the written law of the land, and the common law, as adopted by the written law. It may be observed that no intentional misconduct is imputed to the judge; and no convention would probably frame a constitution with a view to the probability of such

an act being committed by a judge. If indeed a judge were to be found perverse enough to make up a record falsly, there would still be virtue enough left in the community, to save the prisoner by a prompt and'correct representation of his case to the governor, who would relieve him without going through the tedious and dangerous process of altering the record, a thing-against which the wisdom of ages has said nothing can be averred. In our opinion, the motion for a mandamus ought to: be overruled, and it is accordingly done.