The opinion
On Kehearing.
After the affirmance by this court of the judgment of conviction and pending the application for rehearing, Glenn Lawler, one of the appellants, dismissed his appeal. The ease is now here on the application of the appellant George Spelce for rehearing.
In the original opinion there should have been inserted on the tenth line on page 3 [see 103 So. 69S, column 1, line 37], ante, p. 415, after “to wit,” the following:
“This" March 6, 1923, it being made known to the satisfaction of the court that the mother of C. S. Yann, one of the jurors impaneled to try these defendants, had died while the trial of the case was in progress, and it being the opinion of the court that it was necessary to discharge said juror from further consideration of this cause, and therefore it being the opinion of the court that there is manifest necessity for the discharge of the jury trying said cause, it is therefore ordered and adjudged by the court that there be and is hereby declared a mistrial of said cause.”
The trial was again set for March 9, 1923, and on March 12, 1923, the jury failing to agree, £t mistrial was ordered with the consent of the defendants. On May 22, 1923, another trial was had and at that time- the defendants filed their plea of former jeopardy to which demurrer was sustained.
A trial judge ex mero motu, during term time, may, without a motion to amend nunc pro tunc, amend the bench notes by supplying an inadvertently omitted word, and may require the clerk to write the minutes in accordance with the bench notes as amended, so as to make the record speak the truth.
If it should be conceded that there was technical error in the ruling of the court sustaining demurrer to the defendant’s plea of former jeopardy, before the minute entry had actually been written by the clerk, this cannot avail the defendant, as the record affirmatively shows that no injury resulted to him. If he were given another trial he would be confronted .by the minute entry above set out, which complies with all the requirements of the law that the judge spread upon the minutes his reasons for ordering a mistrial. The death of the mother of one of the jurors during the progress of the trial was good reason for discharging the 'juror and ordering a mistrial.
Learned counsel, for appellant, in their brief on application for rehearing, insist that a careful examination of the record will show that questions were asked witnesses eliciting an affirmative answer with reference to statements made by defendants on the morning of the fatal difficulty about going down to the deceased’s place, and direct attention to the questions propounded to defendant’s witness Kib Daniel on pages 43 and 44 of the record. We find the following:
“The- witness (Daniel) was then asked this question: ‘Did you have any conversation with Mr. Lawler?’ Whereupon the state objected to the question on the ground that it was immaterial. The court sustained the objection.
“The defendant then and there excepted to the action of the court in sustaining the objection and stated in open court 'that they expected to prove by the witness in answer to this 'question that there was a conversation, and that. nothing was said in the conversation about having any trouble with Spence, or of going there or doing anything to him or having any trouble -with him, and, further, that Lawler in such conversation asked Spelce if he had seen Houston Hughes that morning; that he had made an engagement with him to help him move; that he had not found him and wanted to know if he knew anything about him, or where he was.
' “The witness was then asked by the defendant the following question:' ‘Mr. Daniel, was there any conversation at that time between Mr. Glenn Lawler and George Spelce, at that place when they met, with reference to going down to Mr. Spence’s and having any difficulty?’ To this question the state interposed an objection which was sustained by the court.
“The defendant then and there duly excepted *422 to the action of the court in sustaining the objection. The defendant then stated to the court that they expected to show by the witness in answer to this question that he did not hear any conversation between Glenn Lawler and George Spelce about going to Spence. ,and having any trouble.
“The witness was then asked the following question by the defendant: ‘Did Mr. Glenn Lawler tell Mr. Spelce on that occasion that he wanted him to go down to Spence’s house?’ To which question the state objected and the court duly sustained the objection. The defendant then and there duly excepted and then and there stated that they expected the witness to answer in the affirmative.
“The witness was then asked this question by the defendant: ‘Did Mr. George Spelce make any promises then or any statement at that time about going to Spence’s house for any difficulty with him?’ To this question the state interposed objection, the court sustained the objection, and the defendant then and there duly excepted. The defendant stated that they expected to prove by the witness in answer to the question that Mr. George Spelce, at the time inquired about, did not make any promise, threat, or any statement to the effect that he was going to Spence’s house for the purpose of having any difficulty or trouble with Spence.”
Appellant’s counsel also call attention to certain questions propounded to Glenn Lawler as 'appears on pages 53 and 54 of the record as follows: •
“The witness was then asked the following question by his counsel: ‘Did you tell Mr. Spelce that morning that you wanted him to go down to Spence’s with you fop any purpose?’ The state objected to this question, the court sustained the objection, and the defendant then and there excepted, stating to the court that they expected the answer to be the same as they expected the answer of the witness Daniel to be to the same question.
“The witness was then asked this question: ‘Was there any conversation that time between you and George Spelce with reference to going down to Mr. Spence’s and having any difficulty?’ The state objected to this question, the objection was sustained by the court, and the defendant then and there excepted, stating to the court that they expected the answer of the witness to be that there was no such conversation.
“The witness was then asked the following question by his counsel: ‘Did you tell Mr. Spelce on that occasion that you wanted him to go down to Spence’s house?’ The state interposed an objection, which was sustained by the court. The defendant then and there excepted, stating that they expected the witness to answer in the affirmative.
“The witness was then asked this question: ‘Did Mr. George Spelce make any promise or make any statement at that time with reference to going to Spence’s house for any trouble or difficulty with Spence?’ The state interposed an objection to this question, which was sustained by the court, and the defendant then and there excepted to this ruling of the court, stating that they expected the answer to be that no such statement or promises were made.”
Eor aught the court knew the purpose of the questions was to elicit testimony to the effe'ct that nothing was said about going down to Spence’s house to have a difficulty. The defendant’s counsel many times stated to the court that such was the purpose of certain questions, and it is clear that the defendant was insisting in a proper way, certainly, upon getting such testimony before the jury. If anything was said which would have beeii admissible as part of the res gestse of the going the court was entitled to know. So far as we are able to ascertain there is no intimation anywhere in the record that such testimony was offered and brought to the attention of the court.
“Unless it clearly appears that the answer to the question would be admissible and relevant, counsel must state the facts expected to be elicited, showing their materiality, before the court can be put in error for sustaining an objection to the question.” 4 Michie’s Dig. par. 437, p. 294.
The application for rehearing is overruled.