Ex partie Pruitt

1. Indictment and Information—Right of Accused to Waive Preliminary Examination. The constitutional provision, art. 2, § 1,, Okla. Const., that no person shall be prosecuted for a felony by information without having had a preliminary examination is in the nature of a personal privilege for the benefit of the accused which may be waived by him.

2. Same—Proper Manner of Challenging Jurisdiction Because no Preliminary Examination Had. The manner of challenging jurisdiction because no preliminary examination was had is by motion to quash or set aside the information before entering a plea on the merits.

3. Punishment—Judgment and Sentence Assessing Excessive Punishment Void on Its Face. A judgment and sentence at

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tempting to assess a punishment that is excessive and unauthorized by statute for the crime named in the judgment was void on its face.

4. Courts—When Criminal Case "Pending". A criminal case is pending in the sense that a court may correct its record until the judgment is fully satisfied.

5. Judgment—Power of Court to Require Clerk to Make Record Conform to Facts Nunc Pro Tunc. The validity of a judgment cannot be avoided because the clerk failed to perform his ministerial duties in making up the record; and where, through the negligence or omission of the clerk, the judgment recorded is defective or incomplete, the court may at anytime, upon a proper showing, require the clerk to make the record conform to the facts nunc pro tunc.

6. Courts—Power of Court to Amend Journal Entry of Judgment and Sentence Nunc Pro Tunc Three Years Later. Where defendant was charged by information with the crime of "burglary in the second degree after former conviction of a felony" and jury in its verdict finds him guilty of "burglary in the second degree after former conviction of a felony" and fixes his punishment at ten years imprisonment in the State Penitentiary; trial court thereafter pronounces judgment in conformity to the verdict but clerk through inadvertence or oversight in preparing journal entry recites that sentence was pronounced for "burglary in the second degree", trial court may amend the journal entry of judgment and sentence nunc pro tunc three years later by requiring the clerk to amend the record so that the crime for which judgment was pronounced thereafter reads "burglary in the second degree after former conviction of a felony."

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The petitioner, Odis Pruitt, an inmate of the Oklahoma State Penitentiary, alleges in his verified petition for habeas corpus that his commitment to the penitentiary is void for the reason that the judgment and sentence under which he is now serving recites
that he was convicted of burglary in the second degree and sentenced to serve 10 years' imprisonment in the penitentiary on account of such conviction; that the maximum period of imprisonment that may be assessed upon conviction of the crime of burglary in the second degree is a term of seven years' imprisonment in the penitentiary, and therefore the judgment and sentence is void.

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Approximately three years later, on December 22, 1948, after the county attorney had been informed of this omission in the judgment and sentence which was signed by the court, he filed his written application for an order nunc pro tunc in which he prayed the district court to direct the court clerk to amend the original judgment and sentence by incorporating therein "after former conviction of a felony". Pursuant to such application, the district court of Oklahoma county, on December 22, 1948, entered the following order:

"It is, therefore, ordered adjudged and decreed by the court that the Court Clerk amend and correct the original judgment and sentence in this case by adding after the phrase 'Burglary in the Second Degree' the following phrase: 'after former conviction of a felony', so that the judgment and sentence will speak the truth and correct the error, negligence and mistake of the Court Clerk heretofore made on December 2/, 1945."

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The power has been confined to those cases in which some hardship would be visited upon one of the parties without any fault of his, unless the judgment was entered. The power to enter judgments and orders nunc pro tunc is inherent in the courts, both at law and in equity, and is not dependent for its exercise upon any statute. It is a power which courts have and liberally exercise to make their records speak the truth; and, if a clerk has omitted to make an entry, whether before or after final judgment, the court may require him to supply this omission nunc pro tunc. When the entry is amended, it is nothing more than perfected evidence of what, in contemplation of law, existed from the time the judgment was rendered, and this amended judgment should be given effect as if no error had occurred in the original entry.

Affirmed