offender shall be imprisoned not exceeding three | passed the sentence which is the subject of years; and if the value of the property be less complaint. Attention was called to the return than $25, the party offending shall be im- of the marshal to the writ of habeas corpus, prisoned not more than one year or be fined not and the parties having been heard, the followless than $10 nor more than $200. 17 Stat. ating proceedings took place: L. 320. Pursuant to that act of Congress the petitioner was indicted in the circuit court of the United States for the southern district of New York, held by adjournment on the 7th of October, 1873; and it appears that the indict ment contained twelve counts, in each of which he is charged either with unlawfully, knowingly, willfully, and feloniously stealing, purloining, or embezzling fifty mail bags belonging to the Postoffice Department, each of the value of fifty cents; or with unlawfully, knowingly, willfully and feloniously appropriating the same to his own use or to some other than its proper use; or with unlawfully, knowingly, willfully, and feloniously conveying away the same to the hindrance and detriment of the public service. Doubt cannot be entertained that each of the twelve counts of the indictment is well drawn, and that they embody an offense which is lėgally defined in the aforesaid act of Congress. By the record it also appears that a jury was duly impaneled on the 15th of October in the same year, for the trial of the defendant upon that indictment, and that the jury, on the twenty-second of the same month, returned their verdict that the defendant is guilty, and that the value of the said mail.bags is less than $25. Convicted as the defendant was upon a valid indictment, he was liable to be punished by be180*] ing imprisoned not more than one year or to be fined not less than $10 nor more than $200; but the judge presiding at the trial, without authority of law, on the 3d day of November in the same year sentenced the defendant "to be imprisoned for the term of one year, and that he pay a fine of $200," and it appears that he was remanded to prison in execution of the sentence. Plenary proof is also exhibited that the defendant, on the following day, paid the fine in full to the clerk and the clerk certifies under that date that "said sum is now on deposit in the registry of the court." By the court: Ordered, that the sentence pronounced against the defendant on the third of the present month be, and the same is hereby, vacated and set aside; And the record states that "the court thereupon proceeds to pass judgment anew and resentence the prisoner, Edward Lange, to be imprisoned for the term of one year.” *Application was subsequently made. [*181 to the circuit judge, on the 17th of December in the same year, for a writ of habeas corpus and a writ of certiorari, to the end that the prisoner might be discharged from custody; and it appears that the circuit judge granted a rule requiring the district attorney and the marshal to show cause before the circuit court, on the twenty-fourth of the same month, at 11 o'clock in the forenoon, why the two writs mentioned should not issue. Šervice was made and the parties appeared and were heard before the circuit judge and the district judge for that district and the judge who sat on the trial of the indictment and who passed the two sentences. Counsel on both sides were heard, and the court denied the application upon the ground that the judgment, being for a punishment expressly authorized by an act of Congress, cannot be impeached by a writ of habeas corpus, unless it appears that the court had no jurisdiction to pronounce the sentence. They proceed to answer that inquiry, commencing with the remark that the jurisdiction is questioned only upon the ground that the court had, on a previous day in the same term, pronounced judgment imposing a different sentence, and they might have added that the sentence first pronounced imposed a punishment not authorized by the act of Congress under which the indictment was found. Vacated as the former judgment was by the order of the court, they proceed to consider the case in that aspect, and remark that if the court had power to vacate that judgment it became of no effect, and that it was the duty of the court to deal with the prisoner upon his conviction of the offense charged in the indict apment, and for the reasons given, as more fully set forth in the record, they discharged the rule and denied the application. Two days after the sentence was pronounced, to wit: on the 5th of the same November, plication in behalf of the defendant was made to the district judge of that district for a habeas corpus, and it appears that the writ was immediately granted and made returnable to the circuit court on the 8th of the same November. Due return was made of the same by the marshal, and the return shows that he produced the defendant and a certified copy of the sentence, stating that the sentence was the cause of the imprisonment and detention of the petitioner. Regular proceeding, therefore, was instituted for a review of the sentence before the money paid for the fine passed out of the registry of the court, as it appears that the amount of the fine was not deposited to the credit of the Treasurer of the United States until the day before the return day of the writ of habeas corpus. On the following day the circuit court came in by adjournment, within the same term as that when the indictment was tried, the same judge presiding who sat in the trial and who Subsequently, to wit: on the 29th of the same December, the circuit court again came in by adjournment, the judge presiding why sat on the trial of the indictment and who passed the respective sentences against the defendant, and it being suggested that the rights of the prisoner would be better preserved if the writ of habeas corpus was *granted as [*182 prayed in the preceding application, it was ordered that the writ issue, returnable on the same day, and the return having been made, the counsel were again heard; but it being conceded that the second sentence was pronounced in the same term as the first sentence, it was ordered that the writ of habeas corpus be dismissed and that the prisoner be remanded for the reasons given by the court on the last preceding occasion. Whereupon the petitioner, by his counsel, applied to this court for a writ of habeas corpus directed to the marshal having the prisoner in custody, commanding him to produce the prisoner at such time as the court shall direct, and that the marshal then and there show the cause of the prisoner's detention, to the end that he may be discharged from custody; and the petitioner also prayed that a writ of certiorari might issue to the clerk of the circuit court for that district, commanding him to certify to this court all the record of that court respecting the case of the prisoner, to the end that errors therein may be corrected. Both writs were ordered, but with the understanding that the writ of habeas corpus would not be issued and served until the counsel were further heard upon the return of the writ of certiorari; and upon the return of the writ of certiorari the counsel were fully heard, and the majority of the court decided that the prisoner was entitled to be discharged from his imprisonment. Unable to concur in that conclusion, I will proceed to state the reasons of my dissent. By the 14th section of the judiciary act it is provided, among other things, that either of the justices of the Supreme Court as well as the judges of the district courts shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment, provided that writs of habeas corpus shall in no case extend to persons in jail unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Properly construed the principal provision empowers the Supreme Court as well as 183*] the *justices thereof to issue the writ and to grant the relief as prayed to the peti tioner. I Stat. at L. 82. Authority upon the subject is also conferred by other acts of Congress, but it is unnecessary to refer to any other act as the petition in this case is obviously founded upon the provision in the judiciary act. Courts of justice may refuse to grant the writ of habeas corpus where no probable ground for relief is shown in the petition, or where it appears that the petitioner is duly committed for felony or treason plainly expressed in the warrant of commitment, but where probable ground is shown that the party is in custody under or by color of authority of the United States, and is imprisoned without just cause and, therefore, has a right to be delivered, the writ of habeas corpus then becomes a writ of right which may not be denied, as it ought to be granted to every man who is unlawfully committed or detained in prison or otherwise restrained of his liberty. Authorities in support of these propositions are unnecessary, as wherever the principles of the common law have been adopted or recognized they are universally acknowledged. Civil society, however, could not exist if it were permitted that crimes should go unpunished; nor is it true that the writ of habeas corpus was ever intended to operate as the means of delivering a prisoner from his imprisonment if he had been duly indicted, convicted and sentenced, and is in prison by virtue of a lawful conviction under a valid indictment and a legal sentence passed in pursuance of a constitutional law of the jurisdiction where the offense was committed. No objection is made in this case to the validity of the indictment, nor is it questioned that the defendant was duly convicted of the offense set forth in the several counts of the indictment. Beyond all question, therefore, it follows that he was liable to be "imprisoned not more than one year, or to be fined not less than $10 nor more than $200." *None of these propositions can be [*184 successfully controverted, as it is impliedly conceded that the act of Congress is a valid law, and it is not even suggested that the indictment is defective or that there was any error in the trial or in the verdict of the jury. Concede these several propositions, and it follows beyond peradventure that the defendant might have been sentenced to imprisonment for the term of one year or he might have been sentenced to pay a fine of $200, but the court sentenced him to both, that is, that he should be imprisoned for the term of one year, and that he should pay a fine of $200, which is a sentence not authorized by the act of Congress which defines the offense, and under which the indictment was found. It is insisted by the petitioner that the sentence pronounced in such a case is an entirety, and that if it exceeds the punishment provided by law it is wholly illegal, and in that proposition I entirely concur. He cites the following cases which fully support the proposition: Rew v. Ellis, 5 Barn. & C. 395; King v. Bourne, 7 Ad. & E. 58; Queen v. Silversides, 3 Q. B. 406; King v. The Queen, 7 Q. B. 795; Holt v. Regina, 2 Dowl. & L. 774; Ex parte Page, 49 Mo. 291; Holland v. Queen, 2 Jebb & Sy. 357; O'Leary V. People, 4 Parker, 187; Shepherd v. Com. 2 Met. 419; Stevens v. Com. 4 Met. 360; Fitz gerald v. State, 4 Wis. 395; Fellinger v. People, 15 Abb. Pr. 128; Ratzky v. People, 29 N. Y. 124. Most of these cases were decided in appellate tribunals and in jurisdictions where there was no legislative act conferring any authority to impose the proper sentence or to remand the prisoner to the court of original jurisdiction for that purpose, and of course the only judgment which the appellate court could render was that of reversal, which operated to discharge the prisoner. Legislative defects of the kind, in many jurisdictions, have been corrected, and wherever that has been done the proper sentence is either imposed by the appellate court or the case is remanded to the court of original jurisdiction for that purpose. Ratzky v. People, supra. Congress has never empowered this court to exercise any *appellate power over the [*185 judgments of the circuit courts in criminal cases, except where the circuit court is held by two judges and they differ in opinion and certify the question in difference here for the decision of this court. Except in that limited class of cases this court cannot re-examine any ruling or decision of the circuit court in any criminal case, nor will a writ of error lie from this court to the circuit court in such case. Exceptions, under the statute of Westminster, were never allowed in criminal cases in the parent country, and from the moment that statute was adopted as the rule of decisions in the Federal courts to the present time, its application, without any exception, has uniformly been confined to civil actions. 1 Chit. Cr. L. 622; 1 Lev. 68; 1 Sid 65; Rex v. Stratton, 21 How. St. Tr. 1187; U. S. v. Gibert, 2 Sumn. 22; People v. Holbrook, 13 Johns. 90; Ex parte Barker, 7 Cow. 143; People v. Vermilyea, 7 Cow. 108; 2 Phil. Ev. 997. Authority to re-examine the rulings and decisions of the circuit courts in criminal cases might undoubtedly be vested in the Supreme Court, but the insuperable difficulties in the way of exercising any such power at the present time is that Congress has not conferred any such jurisdiction. Congress, it is true, has not declared in express terms that the appellate jurisdiction of the Supreme Court shall not extend to criminal cases, nor to civil actions or suits in equity where the matter in dispute, exclusive of costs, does not exceed the sum or value of $2,000, but Congress has described affirmatively the appellate jurisdiction of the Supreme Court, and that affirmative description has always been held "to imply a negative on the exercise of such appellate power as is not comprehended within it." U. S. v. More, 3 Cranch, 170; Durousseau v. U.S. 6 Cranch, 314. Governed by those principles this court has decided in repeated instances that a writ of error will not lie, under any circumstances, to a circuit court in a criminal case. Ex parte Keaney, 7 Wheat. 42; Ex parte Watkins, 3 Pet. 201; Forsyth v. U. S. 9 How. 571; In re Kaine, 14 How. 120; Ex parte Watkins, 7 Pet. 568; Ex parte Gordon, 1 Black. 505, 17 L. ed. 134. 186*] *Even if a writ of error would lie in such a case, still the concession would not advance the argument in favor of the petitioner, as no such writ has been sued out or served, nor is the record here under any process which authorizes this court to reverse or affirm the judgment of the circuit court, as the writ of habeas corpus is not addressed in any sense to the judgments with any view to correct anything which it contains, nor is the judgment removed here for any other purpose than as evidence to support the representation set forth in the petition, that the petitioner is unlawfully imprisoned or restrained of his liberty. Hence it follows, that inasmuch as the record shows that the indictment is in due form, and that the conviction is valid, and that the judgment is legal in form, and such as the act of Congress authorized the circuit court to impose, the only proper order which this court could give in the case was to remand the prisoner, as nothing more than that can be done in the case without exercising appellate power such as the court might exercise if Congress had authorized the court to grant a writ of error to re-examine the judgment as in a civil action. that this court has been in error throughout its whole history, as it has always been competent for the court to re-examine the judgments of the circuit court in criminal cases, which, as it seems to me, it is impossible to admit. Legislation to provide for a bill of exceptions in criminal cases or to authorize a writ of error is certainly unnecessary *if a petition [*187 for habeas corpus, well filled with the affidavits of the jurors who tried the case and of the counsel who conducted the defense, will answer the purpose, as it will be easy to strengthen such proofs, if need be, by the opinions of chamber counsel and by the affidavits of sympathizing bystanders and of the short-hand writers employed for the occasion. Plenty of material of that kind can readily be obtained, and if that will answer the purpose of a bill of exceptions to correct the rulings of a Federal judge, made in the trial of a criminal case, it is quite evident that no further legislation upon the subject is necessary. Opposed to this it may be suggested that the writ of habeas corpus in this case is accompanied by the writ of certiorari, which must be admitted, and it must also be admitted that the office of the writ of certiorari is to bring up the record from the subordinate court for the inspection of this court, in order that the court, by virtue of the writ of habeas corpus, may inquire into the cause of commitment; but if it appear that the cause of commitment is the judgment of a court of competent jurisdiction in a case, not revisable by this court, the settled law is that the judgment is of itself a sufficient cause for the commitment, as neither the writ of habeas corpus nor the writ of certiorari will perform the office of a bill of exceptions. Hence the appellate court, unless specially authorized by legislative authority to do more, cannot look beyond the judgment, nor can it re-examine the proceedings which led to it, for the reason, as Marshall, Ch. J., says, that a judgment in its nature concludes the subject on which it is rendered and pronounces the law of the case; and he adds that the judgment of a court of record whose jurisdiction is final is as conclusive on all the world as the judgment of this court would be. It puts an end to inquiry concerning the fact by deciding it. Ex parte Watkins, supra; Ex parte Kearney, supra. It is to be understood, said Judge Story, that this court has no appellate jurisdiction confided to it in criminal cases by the laws of the United States. It cannot entertain a writ of * error to revise the judgment of the [*188 circuit court in any case where a party has been convicted of a public offense. If, then, says the same learned judge, this court cannot directly revise a judgment of the circuit court in a criminal case, what reason is there to suppose that Congress intended to invest it with the authority to do it indirectly? Ex parte Kearney, supra; Johnson v. U. S. 3 McLean, 89. Grant that a writ of error would lie, still it is manifest that the alleged error could not be corrected without a bill of exceptions, as the error is not apparent in the record. On the contrary, the sentence under which the petitioner is imprisoned is as perfect as one can be framed; as it follows the conviction, and no Apply those rules to the case before the court one pretends either that the conviction is in- and it is clear that the petitioner should be revalid or that the indictment is in any respectmanded, as it appears by the return that he is erroneous. Unless, therefore, the writ of habeas corpus can properly perform the office both of a bill of exceptions and a writ of error the decision of this court must be erroneous; and if it be true that the writ of habeas corpus may perform both of those offices, then it follows in prison by virtue of a sentence of the circuit court in regular form, which was pronounced by the court in pursuance of a legal conviction founded upon a valid indictment. By virtue of the conviction the defendant became liable to be punished by imprisonment for a term of not more than one year or to be fined not less than $10 nor more than $200, and the court sentenced him to imprisonment for the term of one year. Much stress, however, is placed upon the alleged fact that the first sentence imposed was of a different character, that it included imprisonment for the term of one year and a fine of $200; but it is a sufficient answer to that suggestion to say that neither the ruling of the court in imposing that sentence nor the subsequent ruling of the court in vacating it and setting it aside is in any proper sense any part of the record. Statements to that effect are found in the minutes, but those are no part of the record nor can they be made so in any other mode than by a bill of exceptions, which is a proceeding wholly unknown except in civil actions. Nothing is properly included in the record of a criminal case except the indictment, the arraignment and the plea of the defendant, the impaneling of the jury, the conviction of the defendant and the sentence pronounced by the court, and the warrant for his removal in case the punishment is imprisonment. Affidavits cannot add anything to the record, and it is clear as anything can be that neither 189*] *the writ of habeas corpus nor the writ of certiorari can bring into review anything not apparent on the face of the record. as Certain defects in the proceedings are alleged in this case, none of which are apparent on the face of the record. Reference will only be made to two of the alleged defects, as they are the only ones much pressed in argument. They are as follows: (1) That a different sentence was first pronounced by the court, to wit: that the defendant should be imprisoned for the term of one year and that he should pay a fine of $200. (2) That he was remanded to prison in pursuance of that sentence. Enough has already been remarked to show that the first sentence was wholly illegal, as the court, under the act of Congress defining the offense, could not lawfully pronounce such a sentence, and that the court, as soon as the error was discovered, directed that the defendant should be brought into court, and vacated the sentence and set it aside, which, as all must agree, had the effect to render it a complete nullity, even if it ever had any force or effect, which is not admitted. Strong doubts are entertained whether any of these matters are the proper subjects of consideration, but it must be admitted, I think, that the affidavits, if they are admissible at all, are the proper subjects of reference to show what really did take place. Certainly a sentence vacated and set aside by the court which pronounced it, within the same term, for reason that it was plainly erroneous, to the prejudice of the prisoner, must, from the moment it was vacated and set aside, be regarded as a nullity. Such being the necessary legal conclusion, the state of the case before the court was just the same as it would have been if no sentence had ever been passed, as the record showed that the defendant was legally convicted of an offense against the authority of the United States, upon a valid indictment, and that the sentence which the law imposed upon such an offender had never been pronounced in the case. No motion for a new trial was pending, and as all the other proceedings in the case were ended, it *was the plain [*190 duty of the court to pronounce the sentence which the law imposed in the case. Two principal objections are taken to the right of the court, under those circumstances, to impose the sentence, though it is admitted that the sentence pronounced is one which the act of Congress under which the indictment is frained authorized the court to impose in the case. Those objections are as follows: (1) That the defendant, after having been remanded under the first sentence, remained in prison five days before the court passed the order vacating the sentence and setting it aside. (2) That the defendant, on the 4th of November, the day after the first sentence was passed, paid the amount of the fine imposed, to the clerk of the circuit court; and that the clerk on the 7th of the same month, the day before the existing sentence was imposed, deposited the amount of the fine to the credit of the Treasurer of the United States. All must agree that neither of the defects suggested, if such they be, is apparent in the record, as the former sentence was before that vacated and set aside, and the evidence of the payment of the fine consists of the unsworn certificate of the clerk. Great difficulty exists in regarding a sentence in a criminal case, which has been vacated and set aside, as a part of the record, and it seems past belief that anyone should for a moment contend that the certificate of the clerk that he had received the amount of fine from a prisoner in execution should be regarded as any part of the record in the present case. Aside from those difficulties, however, there are several other questions involved which are of very great importance in the administration of criminal justice, which will be separately considered. Confessedly all of the facts are without dispute, as it is conceded that the conviction of the defendant, the first sentence, the granting of the first writ of habeas corpus, the order vacating the first sentence and setting it aside, and the sentence as it now appears in the record, all took place during the same term of the cir cuit court; and it also appears that [*191 the sentence under which the defendant is detained in prison was pronounced by the same judge who presided at the trial of the prisoner and who imposed the sentence which was vacated and set aside. Four principal propositions are maintained by the United States: (1) That a sentence passed upon a prisoner duly convicted of an offense defined by an act of Congress, if erroneous, may be vacated and set aside like any other judgment during the term in which it was pronounced by the court which awarded it, and that the prisoner may be sentenced in the same term, as provided by law, for the offense of which he stands convicted. (2) That an erroneous sentence, when vacated and set aside during the same term by the judge who pronounced it, becomes void and of no effect, and that the prisoner, if duly convicted under a valid indictment, may be sentenced to such punishment as the law provides for the offense of which he is convicted just as if the erroneous sentence had never been pronounced. (3) That the power of the court to sentence a prisoner legally convicted is not superseded or withdrawn by the fact that the first sentence pronounced in such a case was erroneous, if the erroneous sentence, within the same term, is promptly vacated and set aside as soon as the error is discovered. (4) Nor can it be held that the power of the court in that behalf is affected by the fact that the prisoner in the meantime, as in this case, paid the fine which was imposed by the court as a part of the sentence, provided the error is discovered within the same term, and it appears that the judge who imposed the erroneous sentence immediately vacated the sentence and set it aside. Unqualified support to the proposition that an erroneous sentence may be corrected or altered at any time during the term is also found in the case of Rex v. Fletcher, decided in 1803 by the twelve judges. Russ. & Ry. Cr. C. 60. Amendments may be made while the proceedings are in paper, that is, until judgment is issued, for until the end of the term the proceedings, except, perhaps, in capital cases, are considered only in fieri, and consequently they are subject to the control of the court. 3 BI. Com. 407; George v. Wisdom, 2 Burr. 756; King v. Knowles, 1 Salk. 47; Turner v. Barnaby, 2 Salk. 566; Greenwood v. Piggott, 3 Salk. 31; Co. Litt. 260 a; 1 Chit. Arch. Pr. 11th ed. 541. Equally decisive, also, is the language of Mr. Starkie in his valuable work on criminal pleading, in which he lays down the rule that, during the term, assize or session in which judgment is given it remains in the breast of the court, and he states that the fine imposed or any other discretionary punishment may be varied, but he adds that after the term it becomes matter of record and admits of no alteration. Citing 1 Inst. 260; Cro. Car. 251; 2 Hawk. P. C. 48, § 20; 1 Stark. Cr. Pl. 289; Blackamore's Case, 8 Co. 160. It is clear, says Mr. Chitty, in the case of misdemeanors, that the court may vacate the judgment passed before it becomes matter of record, and may mitigate or pass another, even when the latter is more severe. Chit. Cr. L. 722. If, by inadvertence in passing a sentence, says Colby, a requirement of the statute has been overlooked, the court may correct the judgment at the same term before the sheriff has proceeded to execute it, and he adds that such correction *may be made by ex- [*194 punging or vacating the first sentence and passing a new one. 1 Colby, Cr. L. 391; Miller v. Finkle, 1 Park. Cr. R. 376. 1. Exactly the same question in principle was presented in the case of King v. Price, 6 East, 327, to the King's Bench, where it was decided very early in the present century. Suffice it to say that the charge was perjury, and that the court, after overruling a motion for a new trial, sentenced the prisoner to be imprisoned in New192*] gate for one calendar month, and *that he then be transported beyond the seas for seven years. Subsequent researches, however, satisfied the court that the sentence was erroneous because not warranted by law, and the case shows that the court, a few days before the close of the term, vacated it and set it aside, and on the last day of the term the prisoner was again brought into court and set at the bar, as Lord Ellenborough stated, for the purpose of passing upon him a different judgment, which, as he observed, might be done at any time within the same term; and it also appears that Mr. Justice Grose, after having stated to the prisoner that the former sentence had been vacated, pronounced the sentence of the court in the case, that the prisoner should forfeit £20 and be imprisoned in Newgate for the term of six months without bail, that his oath from thenceforth should not be received in any court of record within the realm, and that after the expiration of his imprisonment he should be transported beyond the seas for the term of six years. Sev- Coke states the rule at common law to be enty years have elapsed since that decision was that the record of any judicial act done remainmade, and yet it has never been called in ques- eth during the term in the breast of the judges tion by the court where it was made. Based on of the court and in their remembrance; hence, that decision this court said, in the case of as he says, the roll is alterable during that Bassett v. U. S. 9 Wall. 41, 19 L. ed. 549, that term as the judges shall direct, but when that the control of the court over its own judg-term is past, then the record, as he states the ments during the term is of every day's practice, which is a proposition supported by the highest authority. Doss v. Tyack, 14 How. 312. Courts of common law possessed the power to vacate their judgments during the term in which they were rendered, and the rule is still the same in all courts exercising jurisdiction in common law cases, whether civil or criminal; and the remark is equally correct whether applied to a state or Federal court. Power of a court over its judgments during the entire term in which they are rendered is unlimited. Freem. Judg. § 90. Every term continues until the call of the next succeeding term, unless previously adjourned sine die; and until that time the judgment may be modified or stricken out. Noonan v. Bradley, 12 Wall. 129, 20 L. ed. 281; King v. Justices, 1 Maule & S. 446. Dur193*] ing *the same session or assize, or any adjournment thereof, says Mr. Archibald, the court may vacate the judgment passed upon the defendant, before it has become matter of record, and pass another less or even more severe. Archb. Civ. Pl. by Wels. 15th ed. 157; Com. Dig. tit. Indict. N. rule, is in the roll and admitteth of no alteration, averment or proof to the contrary. Judgments in criminal cases, it is admitted by Gabbett, may be vacated before they become matter of record, but he insists that no court can make any alteration in the same when once the judgment is solemnly entered on the record, except that it may be reversed by writ of error if any material defect appear on the face of it. 2 Gabb. Cr. L. 564; King v. Walcott, 4 Mod. 396. What is meant by the final record is nowhere better explained than by the supreme court of Massachusetts in the case of Com. v. Weymouth, 2 Allen, 144, in which the opinion was given by the Chief Justice. Minutes of the proceedings in a criminal trial are made on the docket by the clerk as they take place, but the record, except in capital cases, is not made until the end of the term or session of the court, when the whole proceedings are spread upon the record in a book or books kept for that purpose, which is, in the Federal courts, the proper substitute for what is called the roll in the practice of the parent country. Such a record is never made up in ordinary criminal trials during the term, |