#### THE STATE v. THOMAS ROBERTS.

It is competent for the Court, after a motion in arrest of judgment, to alter the record during the same term, hy inserting into, or striking from the minutes, whatever may be necessary to make it, when enrolled, speak the truth; and if, by such, alteration, the grounds for a motion in arrest be removed, upon an appeal, nothing can be looked to but the record in its completed state.

A motion in arrest of judgment, cannot be sustained, because it does not appear from the endorsement on the indictment that the witnesses, were sworn before they were sent to the grand jury; for the judgment can be arrested only for matter appearing, or for the omission of some matter which ought to appear in the record, and those endorsements form no part of the bill.

This was an indictment for murder, tried at Perqui-mons, on the last Circuit, before his Honor Judge Pearson.

After the jury had returned a verdict of guilty, the *541prisoner’s counsel moved, in arrest of judgment, because it did not appear that the witness examined by the grand jury had been sworn in Court, as the endorsement upon the bill, “sworn and sent,” was tested by R. B. Thack, and not by Joseph B. Thack, the clerk of the Court; and the word “ clerk,” was not added to the name of R. B. Thack upon the bill. There was no such person as R. B. Thack. Joseph B. Thack had qualified as clerk at that term, and being new in office was permitted to have the assistance of one John Ward, the clerk of the county Court who sat at the clerk’s table with his principal during each sitting of the Court at that term, and made the entry upon the bill. Joseph B. Thack, the clerk, and Wood the assistant, both stated that the witnesses were sworn in open Court, before they were sent to the grand jury ; and Wood stated, also, that not having been theretofore in the habit of signing the name of Thack, he had inadvertently signed it R. B. Thack, instead of J. B. Thack, and had omitted to add “clerk.” The Court, thereupon ordered the following entry to be made upon the minute of the Court, to wit:—

“ The State 1 v. > Indictment for murder. “ Thomas Roberts. )

“ In this case the following persons, to wit, (the witnesses) “ were sworn and sent with the bill of indictment to the “.grand jury. This entry was made by the permission of “ the Court, after the jury had returned their verdict, and “ after a motion in arrest of judgment, upon its appearing “ to the satisfaction of the Court, that the witnesses had “ been duly sworn and sent; and that the assistant clerk, “ by mistake, signed the name of H. B. Thack, instead of “ J. B. Thack, and had, omitted to add the word clerk “ in his endorsement on the back of the bill of indict- “ ment.”

The motion in arrest of judgment was reversed; and the pi’isoner appealed.

■Devereux, for the prisoner.

*542If an in-diotmentbe found without evidence, or «upon illegal evidence, as upon the •testimony •ofwitnesses ■not sworn, upon proof ■of the fact the bill may be quashed, or the matter may be pleaded in abatement.

The Attorney-General, for the state.

Ruffin, Chief Justice.

If the objection which was made in this case, could be taken by way of motion in arrest of judgment, the ground of it, in point of fact, is entirely removed by the statement in the record, that the witnesses, on whose evidence the bill was found, were sworn by the Court on the bill, and sent with it to the grand jury. It is entirely competent to the Court at any time during the term to alter, by inserting into, or striking from the minutes, whatever may be necessary to make the record, when made up and enrolled, speak the truth ; and this Court can look only to the record in its final completion.

But, in the opinion of the Court, the objection if founded in fact, cannot be raised in this stage of the proceedings, or, rather, in this form. Judgment can be arrested only for matter appearing in the record, or for some matter which ought to appear and does not appear in the record. If a bill of indictment be found without evidence, or upon illegal evidence, as upon the testimony of witnesses not sworn in Court, the accused is not without remedy. Upon the establishment of the fact, the bill may be quashed. State v. Cain, 1 Hawks, 352. Or the matter may be pleaded in abatement. But the judgment cannot be arrested; for,it is no part of the record, properly speaking, to set forth the witnesses examined before the grand jury, or the evidence given by them, more than it is to set out the same things in reference to the trial before the petit jury. A memorandum of the witnesses intended tobe used is generally made on the bill by the prosecuting officer for his own convenience, that he may know whom to call; and the clerk usually avails himself of it, and marks the names of such as are sworn, in aid of his memory, if the fact should be disputed. But none of those endorsements are parts of the bill, or are proper to be engrossed in making up the record of a Superior Court; which merely states that it was presented by the jurors for the state upon their oaths. The act of 1797, (see 1 Rev. Stat. c. 35, sec. 6,) does not require any change in the form of the entry, in the case of an indictment, but *543simply prescribes that no person shall be arrested or charged but upon a bill found by the grand jury to be a true

. The Court, therefore, perceives no reason why the judgment should not be carried into execution.

Per Curiam. Judgment affirmed.