Sullins v. State

ON PETITION TO REHEAR

GALBREATH, Judge.

There has been filed a dignified and courteous petition *646to rehear in this case on behalf of the appellant, Phillip Lee Whitehead, asking us to remand to the clerk below for inclusion in the record a purported missing plea in abatement and record of a hearing on a motion for a continuance. Chapter 325, Public Acts of 1969, enacted subsequent to submission of this case to us, is cited as authority for the suggested remand. It amended T.C.A. § 20-1513 to read as follows:

“Mistake apparent in record. — Every mistake apparent on the face of the record may be corrected by the court at any term after final judgment, at the discretion of the court, and if it appears to the appellate court to which said record has been certified on appeal that a mistake has apparently been made in the transcribing of said record, the appellate court may remand the record to the clerk below for correction of the mistake.”

It was not the purpose of the amendment to allow remands to supply deficiencies in a bill of exceptions but rather to allow the clerk to correct an apparent mistake made in transcribing the record. If matters that should have been included in the bill of exceptions to be approved by the trial court are left out and not called to the judge’s attention in time to have them included, this is not the type of mistake that may be corrected. If in typing up the testimony or other parts of a bill of exceptions a mistake is made by the court reporter, attorney or whoever might be preparing it for presentation to the judge for approval, it is encumbent upon the party seeking to have the bill of exceptions authenticated to see that it is correctly made up, although the trial judge *647himself is the final arbiter of what is, or is not, approved as part of the bill of exceptions.

Neither the trial judge nor the clerk can amend or alter a bill of exceptions in any way whatever after appeal. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244; Thomas v. State, 206 Tenn. 633, 337 S.W.2d 1; Burkett v. Burkett, 193 Tenn. 165, 245 S.W.2d 185; Parrish v. Yeiser, 41 Tenn.App. 690, 298 S.W.2d 556.

In substance, we hold that T.C.A. § 20-1513, as amended, will not allow for the untimely inclusion of any matter in the bill of exceptions that was inadvertently omitted.

The remaining points urged by appellant in error for our reconsideration were, we believe, dealt with adequately in our original opinion.

The petition to rehear is denied.

WALKER, P. J., and OLIVER, J., concur.