State v. Patterson, 24 N.C. 346, 2 Ired. 346 (1842)

June 1842 · Supreme Court of North Carolina
24 N.C. 346, 2 Ired. 346


Where a witness on the part of the State, on his cross-examination, was ' asked, whether the prosecutor had not paid him for coming from another State to be a witness and answered that he had not, it is incompetent for the defendant to introduce witnesses to prove his declaration that he had been so paid1:-

Where the fact, to which a witness deposes, constitutes a part of the transaction under investigation, then evidence of inconsistent statements by him, in relation to this fact, may be introduced to impeach his credit.

But in respect to collateral matters, drawn' out by cross-examination, the answers of the witness are in general J.o be regarded as conclusive. The exception to this rule is, when the cross-examination is as to matters, which, although collateral, tend to shew the temper, disposition or conduct of the witness towards-the cause or the .parties. The answers of the witness as to these matters may be contradicted.

If a witness is asked whether he- has made representations as to a particular fact and denies it, then evidence of such representations would be proper, but not-in relation to collateral matters.

On an indictment for bigamy, the second wife is admissible as a witness, either for or against the prisoner.-

Marriage is in law complete, when parties, able to contract and willing to contract, have actually contracted to be man and ‘wife in the forms and with the solemnities'required'-by. law. Consummation by cama' knowledge is not necessary to its validity.

Where a marriage is solemnized in another country, in the manner prescribed by thelaws of this State, the court must understand such amar-riage to be good, unless the contrary be shewn.

The laws of this State, at the time of the cession of Tennessee, must be taken to be the laws of that State, until it is shewn that they have been altered or repealed.

The certificate of the Secretary of State, in relation to to the Statutes of another State, given in persuance of our Statute (Rev. Stat. c. 44, s. 3) is evidence in criminal as well as in civil cases.

Questions to a witness, tending to disparage or disgrace him, may be asked, and cannot be objected to by the opposite party. Whether the witness is bound to answer them- is doubtful.

*347Where a person is called in an indictment by tbe name of Deadema, and it is proved her name was Diadema, the variance is not material

The case of Stale v Upton, 1 Dev. &13, cited and approved.

Appeal from fhe Superior Court ot Law of Surry County, at Spring Term, 1842, his Honor Judge Pearson, pesiding.

This was an indictment for Bigamy, charging the first marriage to have been in Tennessee in the year 1823, with Deadema Kidwell, and the second marriage in Surry County in this State, in the year 1838, with one Leah Carter. On the trial, the State called Josiah Cluck, who swore that he resided in Jefferson County, Tennessee; that many years before, he could not be certain as to the time, he was present at the house of his brother Daniel Cluck, in the said Counity, and saw Patterson, the prisoner, married to one Diemena or Diema Kidwell; he was not certain as to her name, it was Diemena or Diema or‘some-suchmame; he had no acquaintance with her, before or afterwards; knew her only as Mrs. Patterson; ’the marriage ceremony was performed by one Isaac Barton, an old Baptist preacher, who was now dead; he had frequently heard Barton preach, and, although mot himself a member of the Baptist Church,-he knew ¡that Barton had for many years before and since preached and been recognized and considered .as .a -regular member of the gospel; he had regular meeting houses and congregations, where he was in-the habit of preaching at-stated times. The witness stated that it was not a large wedding, nor a very small one; he supposed about twenty persons were present; that Barton stood up in the floor, Patterson and Miss Kid-well standing before him; Barton asked for the licence; Patterson handed him a paper; ’Barton said that authorized him to celebrate the marriage, and called upon all, who knew any impediment, to make it'known or forever thereafter hold their peace; Barton then told the parties to join hands; asked Patterson do you take this woman for your wedded wife and will you love and cherish her and cleave to her only until death, to which Patterson assented; he then asked Miss Kid--.well, do you take this man for your wedded husband and *348will you cherish and obey him .and cleave to him only until. death, to which she assented-; he then pronounced them man and wife. The witness wasasked,ifhehad witnessed any 0^01. marriages in Tennessee, and how they were celebrated. He answered that he had been, married in Tennessee himself, and had witnessed many weddings there; they were all solemnized in the same way as the one described by him, and he never heard anyquestion ahouttheir validity orlawfulness. This question and answer were objected toby the prisoner’s counsel but admitted by the coiirt. Daniel Cluck was then called, and swore that he resided in Jefferson county, Tennessee, was present at the marriage of the prisoner and Diadema Kid-well — the ceremony was performed at his house by old Isaac Barton, who was a regular baptist preacher, and had acted, and been recognized as such, for many years before and after. He gave the same account of the manner in which the ceremony was performed as the former witness gave — and, upon being asked the same question, said he was married himself in Tennessee, and had been present at several other marriages — they were all solemnized in the same way as the marriage of Patterson and Diadema Kid well, and he never heard that their validity ox lawfulness had been questioned— he said Mrs. Patterson was his wife’s sister, and he knew her Christian name was Diadema — she was called by that name and married by that name — the marriage took place nineteen years ago — Patterson and his wife settled about two miles from him, and lived together as man and wife for many years, he could not say ho-vv long, but until they had five children, when they disagreed and parted- — but Patterson staid in the same neighborhood four or five years after the separation, when he left the country and took the children with him — Mrs. Patterson still lives in his neighborhood, and was at his house a few days before he left home. The fact of Mrs. Patterson being alive was also proved by the witness, Jacob Cluck. Both these witnesses, upon cross-examination, were asked if the prosecutor had not paid them for coming to this State as witnesses, and replied that they had never been paid a cent for coming. The State then galled one $'waim, who swore that he was a justice of the *349peace for the county of Surry, and as such had married the prisoner and Leah Carter, who was a single woman — the marriage was solemnized at his house in Surry on the day of ., 1838 — the licence was produced—be stated the manner in which he was in the habit of perform" ing the ceremony, and in which he had married the prisoner and Leah Carter — it was the same as that .described by the witnesses, Jacob and Daniel Cluck — he said the wedding took place about sunrise, and Patterson and Leah Carter started off soon afterwards. The Solicitor for the State then read a copy of the Laws of Tennessee on the subject of marriage, .certified by the Secretary of State of this State, as prescribed by the statute, (Rev. Stat. c. 44, s. 3.) This was objected to by the prisoner’s counsel, because, as he alleged, it appeared upon its face to be only detached sections; but it was received by the court. The Solicitor then offered to read a record of the bond and licence, certified by the record of the County Court of Jefferson county, Tennessee. This was objected to, and the objection was sustained, because, although, by the laws of Tennessee, the bond and licence are required to be filed in the office of the Clerk of the County Court, they are not made a record, which he is authorized to certify. The prisoner’s counsel then called a witness, and proposed to ask him whether Jacob and Daniel Cluck had not told him that the prosecutor had paid them for coming to this State as witnesses. This was objected to and rejected by the court. The prisoner’s counsel then introduced a witness, who swore that, at the last term of the court, finding Jacob and Daniel Cluck, who had attended as witnesses, out of money, he had assisted them in borrowing ten dollars to bear thei? expenses home, but this was not done at the instance of the prosecutor. The prisoner’s counsel then called on Sammons; who swore that he had resided in Tennessee about two years, some seven or eight years ago, was well acquainted with the character of Daniel Cluck, and that he was a man of bad character. Upon his cross-examination this witness was asked, whether he had not started, when he went to Tennessee, between sun-down and sun-rise. This question was objected to as tending to make the witness dis*350parage himself, but was allowed by the court. The witness answered that he had started after night. He was then asked if he had not started back from Tennessee between sundown and sun-rise. He said he had. The prisoner’s counsel then called Leah Carter, who was alleged to be the prisoner’s second wife, and proposed to ask her, whether the prisoner ever had..connexion with her. She was objected to on the part of the 'State, and the objection was sustained by the.court, because .the .prisoner .could not examine her, without admitting .that she was not his wife. The Solicitor for the State then called Joshua Ccvrter, who swore, that, after the prisoner had married his daughter, he went out to Tennessee, and that the witnesses, Jacob and Daniel Cluck, had the character of respectable men in that country. Upon cross-examination, this witness-said he could not say whether the prisoner had .consummated his marriage with his .daughter or not — that, as -soon as he heard of the contemplated marriage, he pursued his -daughter and found her at the house of the prisoner, and succeeded in getting her home with him by twelve O’clock of the same day on which they were married. This witness also deposed that he had frequently seen Mrs. Patterson in Tennessee, and that her name was Diadema. .

The prisoner’s counsel -insisted, 1st, That his marriage with Diadema Kidwell had not been proven to be valid according to the laws of Tennessee: 2ndly, That supposing her name to be Diadema, ¡there was a fatal variance from the name Deadema set out in the indictment: 3dly, That to constitute -the offence of Bigamy, the second marriage should not only be celebrated, but consummated by having connex-ion: 4thly, That it did not appear but that the prisoner’s first wife was beyond seas for seven years before his second marriage: 5thly, That it did not appear, supposing her not to have been beyond seas, but that the prisoner had been separated from her, and did not know she was alive, for seven years before the second marriage.

The court charged, that, if the two Clucks were believed, the prisoner had, about the year 1823, married Diadema Kidwell, in Tennessee, and she was still living, and, if the *351marriage ceremony was performed in the manner stated by them, and that was the usual mode ot being married in Tennessee, there was a presumption that the marriage was valid, and according to the laws of the State, unless the contrary was shewn; upon the plain principle that, in a matter of so much importance as marriage, a certain mode would not be adopted and become common, unless it was according to the laws of the country. Besides, the laws of Tennessee, as read in evidence, shewed that this mode was according to law, and although the licence had not been produced on the trial, it appeared that the laws of Tennessee, like our laws, did not declare a marriage void, when there was no licence, but merely imposed penalties. Upon the second point, it was for the jury to say whether the name of the woman was, Diema or Diadema — then the court charged that there was not a fatal variance from the name Deadema stated in the indictment. Upon the third point, the crime of bigamy consisted not in the injury to the first wife nor in the injury to the second wife, but in the injury to society, by violating an institution, necessary to the very existence of civil life; and, although the consummation of the second marriage by connexion would have been a great injury to the second wife, still it was not the gist of the offence, and it was not necessary to enquire whether it had been done or not. Upon the fourth point, the court said the evidence did not raise the question. Upon the fifth point, it was necessary that there should be an absence of seven years, and that the prisoner did not know, during that time, of his wife’s existence. How these facts were was a question for the jury.

The jury found the prisoner guilty. There was a motion for a new trial, because the court received testimony that was inadmissible, and rejected testimony that ought to have been received, and for error in the Judge’s charge. This motion was overruled. There was then a motion in arrest of judgment, because the indictment laid the venue of the first marriage in Tennessee. The court was of opinion that the place of the first marriage was not material, and the venue in Tennessee could be treated as surplusage, espe*352cially after verdict; for the substance of the offence was, that, being in the county of Surry, a married man, and his wife alive, he then and there married a second time. The m0ti0n was overruled. And the court then proceeded to pass this judgment — that the prisoner be fined ten dollars, be imprisoned for three months, and that the sheriff bring him into court this day at eleven o’clock and brand him on the left cheek with the letter B., and that he give him thirty-nine lashes on his bare back on the Tuesday oí the next County Court at the public whipping post, and that he be in custody thereafter till the fine and costs are paid. From which judgment the defendant appealed to the Supreme Court.

Boyden, for the defendant,

as to the necessity of proving consummation in the second marriage, cited 1 Wood’s In-stit. 57. As to the variance of names, 3 Starkie’s Ev. 1290, 1578. 10 East. 83. Bingham v Diclcen, 5 Taunt. 814. 1 Chitt. Rep. 216. 3d, as to the proof of the statutes of a State, lie contended that part could not be given in evidence, without giving the whole.

Attorney General, in reply

— as to the first point contended that the crime bigamy was complete, without proof of consummation of the second marriage. As to the variance of names he cited 1 Chit. Crim. Law 203. Arch. Crim. Law 100, 447. State v Farrier, 1 Hawks 489. As to the law of Tennessee, Arch. Crim. Law 475.

Gaston, J.

It is objected on the part of the appellant, that the court below erred in rejecting proper evidence, which was offered in his behalf. The case states, that, on the cross-examination of Jacob Cluck and Daniel Cluck, witnesses examined on the part of the State to prove the first marriage of the defendant, they were asked whether the prosecutor had not paid them for coming to this State as witnesses, to which question they replied, that he had not; and that afterwards the prisoner'called a witness and proposed to ask him whether the said Jacob and Daniel Cluck had not told Mm, that the prosecutor had paid them for coming to *353this State as witnesses.- This question was objected to, and the court sustained the objection. 'The case dóes not set forth for what purpose the question was asked, or on what ground it was overruled. If it was a proper question for any legitimate purpose, the refusal of the court to let it be proposed was error. It cannot be contended that the evidence offered was competent to establish the fact that the witnesses had .been paid by the prosecutor; for that fact, if material, must be proved by persons, testifying under the sanction of an oath, and subject to cross examination, and could not be established by the declarations of one, not a parly nor a privy to the canse. But it is' insisted that the evidence was receivable, as having a tendency to effect the credit of those witnesses, because it shewed that-,'as tú this fact, they had given, when not on oath,-a different representation from that to which they had deposed on the trial. If the fact, in ralation, to which these inconsistent representations were alleged to have been made, had been one constituting a part of the evidence of the witnesses, upon the transaction under investigation, we should not hesitate in holding, that it was competent to attack the credit' of the witnesses by testimony of the kind offered. It is well settled, that the credit of a witness may be impeached by proof that he has made representations inconsistent with his present testimony, and whenever these representations respect the subject matter, in regard to which he is examined, it never has been usual with us to inquire of the witness, before offering the disparaging testimony,- whether he has or has not made such representations. But with respect to the collateral parts of the witness’ evidence, drawn out by cross-examination, the practice has been to regard the answers of the witness as conclusive, and the party so cross-examined shall not be permitted to contradict him. Of late, however, it is understood that this rule does not apply in all its rigour, when the cross-examination is as to matters which, although collateral, tend to shew the temper, disposition or conduct of the witness in relation to the cause or the parties. His answers as to these matters are not to be deemed conclusive, and may be contradicted by the interrogator — and, in this *354class, we think, may be included the enquiry, whether the witnesses have been paid by the prosecutor for their attend-anee. Sri the court below thought, and therefore did re-cejve evidence of the witness,-who was subsequently offered for this purpose. But the testimony rejected was not offered to contradict what the witnesses had deposed. Had these witnesses been asked whether they had made the representations attributed to them, and on being so asked had denied the fact, then the representations might have been proved upon them, and the effect of this contradiction upon their credit would have been a fit matter to be weighed by the jury. But we hold it to be unfair to attack the credit of a witness, by shewing that his answer, extracted by cross-examination, on an enquiry of this character, does not correspond with some statement previously made, without first drawing his attention to such supposed statement, so as to revive his recollection thereof and afford him an opportunity, if he remembers or admits it, of giving it fully, with such explanations as the circumstances may justify. With respect to the subject matter of the witness’ evidence, he may be presumed to come prepared to testify with a freshened memory and carefully directed attention — 4rut this presumption does not exist as to collateral matters, remotely connected with that subject matter; and justice to the witness, and still more, reverence for truth requires, that, before he be subjected' to the suspicion of perjury, he shall have a chance of awaken in 2: such impress ions in respect thereof as may be then dormant in his memory. We hold, therefore, that the court did not err in rejecting this testimony. It is further objected, that the defendant proposed to prove by his second wife, that his marriage with her had not been consummated by carnal knowledge of her body, and that the court rejected this testimony. Th'e ground on which the court below placed the rejection of this testimony, was, because the defendant, by calling her as a witness, admitted that she was not his wife; and by that admission, inasmuch as the fact of the second marriage had been established, he necessarily admitted the validity of the first marriage, and of consequence the crime wherewith he was charged. We are *355not satisfied that this ground can be sustained, on an indictment for bigamy. The second wife, it seems, is a witness either for or against her husband, simply because such second marriage is ipso facto void. Buller's N. P. 286-7. Unquestionably she is admissible as a witness against him, l Hale’s P. C. 693,66'i,and it is believed to be a settled principle, that whenever husband and wife are admissible witnesses against each other, they are also admissible for each other. Rex v Sergeant & others, Ryan & Moody 352 (21 E. C. L. R. 453.) There are certainly cases, where the fact of a .second marriage being had, living a former wife or husband, does not constitute the crime of bigamy. Our statute, defining the crime and declaring the punishment thereof, provides, that it shall not extend to any person, whose husband or wife shall continually remain beyond sea for the space of seven years together, nor to any person whose husband or wife shall absent him or herself in any other manner for the space of seven years together, such person not knowing his or her husband or wife to be living within the time. In neither of these excepted cases can the husband or wife be (-prosecuted for the second marriage, yet that second marriage is absolutely void. An admission of the invalidity of the second marriage is not therefore a necessary admission of .guilt. But we hold, that the testimony offered was properly •rejected, because the fact, proposed to be established by it, yras wholly irrelevant. The crime, in the language of our act, was completed, when any person, now married, or who shall be hereafter married, doth take to him or herself another husband or wife, while his o.r her former wife or husband is still alive”—and there can be no question but that this is done, when the parties before the authorized minister declare that they there take each other for man and wife. Consensus non concubitus facit nuptias. Marriage., or the relation of husband and wife, is in law complete, when parties, able to contract and willing to contract, actually have contracted to be man and wife in the forms and with the solemnities required by law. It is marriage—it is this contract, which gives to each right or power over the body of the •other, and renders a consequent cohabitation lawful. And *356it js the ahnse 0f this formal and solemn contract, by enter-ing,“‘° ^ a secon<i time, when a former husband of wife is yet living, which the law forbids because of its outrage upon puhlic decency, its violation of the public economy, as well as its tendency to one into a surrender of the person under the appearance of right. A man takes a wife lawfully, when the contract is lawfully made. He takes a wile unlawfully, when the contract is unlawfully made — and thi? unlawful contract the law punishes. It is also objected, on the partpf the prisoner, that improper evidence was received against him.’ In the first place, he objects to all the evidence received, tending to establish that a marriage, contracted in Tennessee, with the forms and solemnities described by the witnesses as accompanying that with his former wife, was a valid marriage, according to the laws of that State, if we were to give this objection all the effect claimed by it, and to admit that the v/hole of this testimony was improperly received, yet the defendant yroultj derive ho benefit therefrom. The marriage was solemnized in the manner prescribed b.y the laws of this State, and, until the contrary appears, we must understand that a marriage, so solemnized, would be good wherever celebrated. But besides it was solemnized according to the laws existing when Tennessee constituted a part of this State, laws which still exist here, and which must yet exist there, unless they have been repealed or modified by subsequent legislation. We know judicially, because it is a part of the public law this State, that the State of Tennessee was once a territory within the limits this State, and in the year 1789 was ceded to the United States, upon an express stipulation, that the laws in force and use in the State of North Carolina, at that time, should be and. continue in full force, within the territory thereby ceded? until the same should be repealed or otherwise altered by the legislative authority thereof — (see act of cession, Rev. Code ch. 299*) We must presume the continued existence of this law, until the contrary is shewn. But the.rc is no doubt entertained, upon the questions raised with respect to the re: ception of the certified copy of the law of Tennessee from the Secretary’s office. It is enacted that “in all suits, wherein *357it may be necessary for the decision of the case, to produce in evidence the law of any of our sister States, it shall and may be lawful for either party to produce in court a copy of the law of sueh State, drawn off by the Secretary of our State, from the copy of the laws of our sister State,deposited in his or the executive office, certified under his hand with the seal of the State of North Carolina attached, and it shall be his duty to furnish said copy when required, and such copy, thus attested, shall be held and deemed sufficient evidence of the existence of such law.” f-Rev. Stat. c’h. 44, sec. 3.) It is admitted that the certificate accompanying the copy of the law of Tennessee from the Secretary’s" office, was in all respects full and in due form. But it is contended, that the act referred to authorizes the production of such copies, as evidence in civil suits only, and not in pleas of the State; and further, that on an inspection of the copy certified by the Secretary, it was apparent that the.same was not a full copy. Now it cannot be denied, that the words of the act all suits wherein it may be necessary for the decision of the case to produce in evidence the law of a sister State” are sufficiently broad to take in criminal prosecutions as well as civil actions. Nevertheless as it is possible that these terms may have been used with reference to cases of the latter description only, we should not hesitate so to construe .the act, if any sufficient reason were offered, for assigning to it this restricted meaning. But instead of this, we have strong grounds for believing that it was with a special view to criminal prosecutions the act was passed. It was first enacted at the session of our Legislature, in December 1823, and the avowed purpose of its enactment was to correct an inconvenience, which had been proclaimed by this court at the prceding term in a criminal prosecution. The court-there reversed the judgment rendered below against one indicted for passing counterfeit money, purporting to have been issued by the bank of another State, because the statute book of that State had been received as evidence on the trial to prove the law establishing the Bank. State v Twitty, 2 Hawks, 441. Besides, the act of 1823, by its second section, provided, that the Secretary should receive fees from' *358the Treasurer of the State “for all copies thus furnished lor ^e use ^ •A-itorney General -or Solicitor of the State in any suit in which the State may be party” — and, ever since t[je aüt 0f J823 down to this day, copies of laws so certified have been received on trials of pleas of the State without a question or doubt o.f their admissibility. The Revised Statutes of 1837 re-enact the whole of the act of 1823 — giving the first section of it verbatim, in chapter 44, sect. 3, and the second section substantially in chapter 105, sect. 13. We have no doubt that the act of -1823 received a proper construction, and that the act on the same subject in the same terms in the Revised Statutes should receive the same construction. The other ground on which the prisoner’s counsel .contends that the certified copy of the Tennessee law -was improperly received, viz: that on inspection it appears not to be a full copy of the law, is, we think, founded in a misapprehension. The 'law, whereof a copy is requested to be certified, is the law of Tennessee. All of that law is certified, beginning with those parts of the statutes of North Carolina which were in force when Tennessee was ceded, and going down to the latest legislation on that subject. What would seem to be omitted — are the sections of the North Carolina Statutes, which had been repealed before Tennessee was ceded. It may be added on this head, that if the certified copy of the Tennessee law was properly received in evidence, it becomes unnecessary to enquire, whether the testimony of the witnesses on that point was admissible. Itoould do the prisoner no injury.

The remaining -part of the evidence, alleged to have been improperly received against the defendant, is to be found in that part of the-case, which states, that the prosecuting officer in cross-examining a witness for the prisoner, was permitted to ask him, in relation to his peregrinations between this State and Tennessee, whether he had not selected the night as the most opportune season for commencing his journies — notwithstanding this question was objected to by the prisoner’s counsel, because of its tendency to,.disparage the witness. Now it has certainly been much disputed how far a witness shall be compelled to answer questions which, *359without charging him with crimes, have a tendency to his disparagement or disgrace, and, although we believe that the weight of authority is that the witness may be compelled to answer such questions, we feel that the subject is not free from difficulty. But we understand, that there is tío doubt but that such questions may he rightfully asked; and the only doubt is, whether, when they are so asked, the witness may decline to answer them, (see the cases referred to 1 Star, on Ev. note to 172.) We hold, therefore, this objection, unsupported. An exception was also taken, because of an alleged misdirection of the jury on the subject of a vari-anee between the name of the lawful wife, as stated in the indictment, and her true name, as proved by the witnesses. It is charged in the indictment, that the defendant married one Deadema Kidwell, spinster, and that, afterwards, and while the said Deadema was alive, he took to wife one Leah Carter. The court instructed the jury that, if, upon the testimony of the witnesses, they should believe the Christian name of the first wife was Diadema, there was not a fatal variance between the indictment and the proof, and the defendant might be convicted as charged. It is a great rule of evidence that the proofs should correspond with the allegations, and where persons are described by name simply, in the allegations, evidence in relation to persons of different names cannot be considered as applicable to those so described. But it is also well established, that a name, merely misspelled, is, nevertheless, the same name. Now, as names are to a great extent arbitrary, and to that extent are distinguishable from each other only by the combinations of the letters or syllables whereof they are composed, it becomes a difficult matter to fix the-line, which separates the cases of mistake in spelling the same name, from those variations in spelling, which constitute different names. The nearest approach to it is to be found in the rule of idem sonans, that those names shall be considered identical which sound alike. Instances of the application of this rule are, of Segrave for Seagrave ( Williams v Ogle, 2 Str. 889.) Benedetto for Beneditto, (Abuthol v Beneditto, 2 Taun. 401.) Whineyard for Winyard, (Rex v Foster, R. & R. 412)— *360and of Anny for Anne, Stale v Upton, 1 Dev. 513. The variance here objected seems to us not greater than those, which in some of the cases referred to were held to be immaterial, and to amount to no more than misprisions in spelling. We cannot doubt but that Deadema and Diadema Kidwell are ope and the same person,' and therefore- we hold this direction of the Judge not erroneous. We deem it unnecessary to take particular notice of the other matters of exception raised upon the record. They are clearly untenable. It must be certified to the court that there is no error in their proceedings, and they must be directed to go on to sentence.

Per Curiam, Ordered accordingly.