#### STATE v. JIM LEWIS.

(Filed 26 February, 1919.)

1. Court’s Discretion — Rape—Jurors—Special .Venire — Writs—Entries— Orders — Nunc' Pro Tunc — Appeal and Error.

Where tbe trial of a capital felony bas been proceeded with, and the-accused has not exhausted his peremptory challenges, it is within the discretion of the trial judge, not reyiewable on appeal, in the- absence of' gross abuse or corruption in drawing and summoning the jurors, to correct an omission by the clerk to issue the writ for the special venire and to enter the order for it upon the minutes of the court by directing the omitted acts to be done by the clerk nunc pro tunc and the sheriff to make-the proper return upon the writ.

2. Evidence — Contradiction—Rape—Trials.

Where the prisoner and his witnesses have testified, for the purpose of proving an alibi, that he was sick in bed for a period of time extending over two weeks, including the day on which the rape was committed, for which he was being tried, it is competent, in order to contradict these-statements, for the State to show that during that time he was several times seen apparently well and going about at other places.

INDICTMENT tried before Daniels, J., and a jury at November Term, 1918, of Wayne.

Tbe prisoner was charged with rape, committed on tbe person of' Mrs. Sarah King, on 17 January, 1918. Tbe prosecutrix testified that she was alone in tbe field picking cotton, about 5 o’clock in tbe afternoon, when tbe defendant approached her from tbe negro cemetery and asked her what she received for picking cotton, and then if tbe butcher-wagon bad passed by. He walked along tbe cotton row behind her, and when she reached tbe end of tbe row be seized her' and threw her .down to tbe ground, and bad connection with her, by force and against her will. She cried out and be choked her. When be left, after being-there a half hour, be went towards tbe branch. She met Mr. Jones on her way to her home and told him about it, and be went back with her to tbe place. She described minutely bow tbe prisoner was dressed at tbe time, and stated that be bad a gap in bis teeth. She identified tbe prisoner as tbe man who assaulted her in tbe field, and expressed herself as being positive and sure that he is tbe man. She was corroborated *556by Mr. Jones, who testified tbat be went to tbe field witb Mrs. King and saw tbe place "where, as sbe alleged, tbe act was committed, and it ■appeared as tbongb there bad been a struggle there. He further stated "that there were bruises on Mrs. King’s throat, and sbe was crying when be met her in tbe road. He accompanied her to her home and reported tbe facts to Mr. Eulghum, tbe constable, who also went to tbe place where Mrs. King was assaulted, and testified tbat there were indications of a struggle on tbe ground; tbat be went to tbe prisoner’s home and found him in bed, and be said tbat be was sick, and was sick and in bed •on 17 January, 1918, and bad been sick ever since.

Tbe defendant’s witnesses testified tbat tbe prisoner was sick and in bed on 17 January, 1918, and for a week befoi’e and for a week after ■that day.

Tbe State, in rebuttal, offered evidence tending to show tbat tbe prisoner bad been seen by them, not in Goldsboro, where be was found by tbe constable, when he said tbat be was sick, and was then in bed, but in tbe country some two or three miles from Goldsboro, within tbe week before and tbe week after 17 January, 1918, and tbat be bad -chased Mrs. Loftin, and tried to grab her, and returned three nights ■afterwards and peeped in tbe window of her bouse. This evidence was ■admitted over tbe prisoner’s objection, but was confined by tbe court .■strictly to its effect as contradicting tbe prisoner’s declarations and tbe testimony of bis witnesses as to bis whereabouts at tbe time mentioned, though there was evidence tbat be ran when be saw one of tbe witnesses a few days after tbe alleged assault. None of this evidence was permitted to be used as substantive but only as tending to contradict tbe •defendant’s witnesses and bis own statements.

A special venire of 40 jurors was ordered by tbe court, but tbe writ was not drawn out in writing and delivered to tbe sheriff at tbe time. When tbe case was again called for trial only twenty-two of this panel answered to their names, and five of these were excused, leaving seventeen for service. This number was exhausted and another order made for twenty special jurors, and there was a third order made for ten jurors, and tbe sheriff summoned tbe members of a jury which bad just ’ rendered their verdict in another ease and were dismissed until a later •day in tbe term. A jury was finally selected, without tbe prisoner having exhausted bis peremptory challenges, be having made use of only nine of them. "When it was discovered tbat no formal writ bad been issued for tbe forty jurors tbe court, on motion, ordered tbe writ to issue nunc pro tunc, and tbe sheriff to make bis return thereon, which was done, be stating tbat be could only find twenty-two of tbe forty summoned after proper search for them. * These proceedings" of tbe •court were all duly and severally objected to by tbe prisoner, and bis *557objections were overruled, and they are now assigned as error.

He was convicted, sentenced to death, and appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

W. F. Tayloe and J. Faison Thompson for defendant.

Walker, J.,

after stating tbe case: We have no doubt as to tbe power of tbe court to amend its record by inserting tbe order for tbe summoning of tbe special venire, and tbe issuing of tbe writ to tbe sheriff, and tbe entering of bis return upon tbe process nunc pro tunc. Tbe order for these amendments and tbe correction of what was overlooked by tbe officers, that is, tbe clerk and tbe sheriff, related back to tbe time when tbe order or writ should have been issued by tbe clerk, and tbe retifro made thereon by tbe sheriff. When tbe court has tbe power we do not review its exercise, as it is.within tbe discretion of tbe court to decide whether it will exercise it or not. There are a vast number of authorities for this position, and there is nothing better settled by our cases than this rule. Phillipse v. Higdon, 44 N. C., 381; Clark v. Hellen, 23 N. C., 421 (approved in Henderson v. Graham, 84 N. C., 496) Seawell v. Bank, 14 N. C., 279; Cheatham v. Crews, 81 N. C., 343; S. v. Cauble, 70 N. C., 62; Bullard v. Johnson, 65 N. C., 436; Williams v. Weaver, 101 N. C., 1; Lutterell v. Martin, 112 N. C., 593; Grady v. R. R., 116 N. C., 952. There are many other cases more or less analogous to this one.

In S. v. Cauble, supra, this Court held that tbe Superior Court bad tbe power to amend tbe warrant by striking out tbe name of tbe prosecutor as plaintiff, it then having tbe form of a civil action, and inserting tbe name of tbe State, Justice Bynum saying: “Tbe power of tbe court to make any amendment in furtherance of justice is ample. C. C. P., sec. 132. Tbe change did not affect tbe defense or take tbe defendant at a disadvantage, and be therefore has no cause of complaint.” It was held in Clark v. Hellen, supra, and Chief Justice Smith stated in Henderson v. Graham, supra, approving Clark v. Hellen: “Amendments of process are not admissible when tbe effect will be to prejudice acquired interests or take away any defense which could be made to an action begun at the time of tbe amendments. Phillips v. Holland, 78 N. C., 31. Tbe power has been exercised in numerous cases in this State and precedents established for tbe present application. Thus it is held that a seal may be affixed to a writ issued to another county after its return, and tbe process, void without seal, thus rendered effectual. Clark v. Hellen, 23 N. C., 421. And this may be done to a fieri facias under which tbe defendant’s land has been sold, for tbe purpose *558•of perfecting the purchaser’s title. The extent to which the power of amendment has been carried will appear in the'numerous cases which have come before this Court, and to which it is needless to refer in ■detail. Some of them are cited in Cheatham v. Crews, 81 N. C., 343,” citing Purcell v. McFarland, 23 N. C., 34; Seawell v. Bank, 14 N. C., 279. The power of the court to require the officers to do what it had ■ordered to he done is fully discussed in the very recent case of Mann v. Mann, 176 N. C., 353.

We therefore conclude that the court, in the exercise of its discretion, ■could amend the proceedings and allow the clerk to issue the writ and ■the sheriff to make a proper return nunc pro tunc. S. v. Whitt, 113 N. C., 716; Lutrell v. Martin, 112 N. C., 593; Grady v. R. R., 116 N. C., 952. An officer may be allowed to amend his return of process so as io’make it speak the truth, even though the amendments defeats the •plaintiff’s recovery of a penalty for a false return. Stealman v. Greenwood, 113 N. C., 355; Swain v. Burden, 124 N. C., 16; Swain v. Phelps, 125 N. C., 41. The judge’s finding of facts shows that the omission Rere was purely clerical, and could in no way affect any substantial right, so to cure it was plainly within his discretion. There seems to have been no other irregularity alleged in the further proceeding to .secure a jury, and if there was, it could not, in the absence of fraud or •corruption, affect the rights of defendant. S. v. Speaks, 94 N. C., 865; S. v. Hensley, ibid., 1021; S. v. Whitson, 111 N. C., 695; S. v. Brogden, 111 N. C., 656; S. v. Whitt, supra; S. v. Parker, 132 N. C., 1014.

In this record it appears that the court had ordered the sheriff to summon the venire of forty men, and it was the plain duty of the clerk ■ to enter this order in the minutes, and of the sheriff to obey it. If the clerk failed to do so, by inadvertence, the court could, at any time, require him to supply the omission and to issue, the writ, so that the sheriff could make his return. The jurors, wh'o were named in the • verbal order, were actually notified to appear at the court, so far as they could be found, and it amounted to nothing more than committing to writing that which was ordered to be done. How it could prejudice the prisoner in any way or in the least degree we fail to see. This .assignment of error, therefore, is unavailing.

The evidence admitted by the court was manifestly competent for the single purpose of contradicting the prisoner’s statement and the testimony of his witnesses that he was sick for two weeks, including 17 January, 1918, as one of the days, and it was thus restricted by the judge. This assignment also must be disallowed.

The other exceptions are merely formal.

There was sufficient evidence, in law, to support the verdict.

*559It must, therefore, be certified that there is no error in the case or Tecord.

No error.