Appellant was convicted of murder and death sentence was imposed. He files motion for certiorari suggesting diminution of the record. No motion for new trial was made before adjournment of the term. Later, such motion was presented, but is not part of the record on appeal.
The motion for certiorari prays that this Court order the motion for new trial sent up and incorporated into the appeal record. Regardless of the serious points urged as a basis for the motion, we are without authority to consider same under this procedure. It is not shown that the trial judge acted thereon, and it is not therefore proper subject for an assignment of error. However, the motion was filed too late for consideration by either the trial judge or this Court.
The motion must be denied, but without prejudice to rights, if any, appellant may have to proceed otherwise. Pittman v. State,147 Miss. 593, 113 So. 348.
Overruled.