concurring.
I vote to deny rehearing but do so because the Appellant did not seek to correct the record prior to our determination upon the merits. Its request to do so upon rehearing comes too late.
I do not, however, agree that the silence of the order book with respect to the stage of the proceedings at which the Allen charge was given is necessarily fatal to an argument premised upon the giving of such charge. An appellant may premise an appellate argument upon a fact, the existence of which is not challenged, despite the silence of the order book as to that fact. Taylor v. State (1982) Ind., 438 N.E.2d 275. See Collins v. State (1981) Ind., 415 N.E.2d 46. At no time during the consideration of this appeal, nor upon rehearing, do the Ap-pellees challenge that the Allen charge was in truth and fact given as a supplemental instruction after the jury had retired and had begun deliberations. The affidavit of the trial judge appended to Appellant’s Petition for Leave to File A Supplemental Record confirms that the Allen charge was given “after many hours of deliberation.” The affidavit of the Court Reporter likewise demonstrates that the record as filed was inaccurate as to the proper sequence of proceedings after the conclusion of the evidence. Nevertheless, Appellant had an opportunity to discover the inaccuracy of the record prior to its submission to this court and certainly prior to our decision upon the merits. Ind. Rules of Procedure, Appellate Rule 7.2(C). At some time or other the matters before us on appeal must be viewed *378as fixed and not subject to amendment or modification. Appellant’s attempt to modify or correct the record at this late date is properly rejected. Utterback v. State (2d Dist.1973) Ind.App., 302 N.E.2d 514, reversed on other grounds, 261 Ind. 685, 310 N.E.2d 552.