Lipscomb v. State

On Rehearing

Appellant’s application for rehearing is accompanied by a petition for a writ of certiorari to the clerk of the circuit court directing ’him to perfect, the record by transmitting to this court the omitted exhibits referred to in our original opinion.

The appellant is charged with the duty of presenting a correct record to the appellate courts. Weldon v. State, 21 Ala. App. 357, 108 So. 270; Graham v. State, 30 Ala.App. 179, 2 So.2d 463; Dorough v. State, 30 Ala.App. 181, 2 So.2d 465.

This court has held that a party is not entitled as a matter of right, on an application for a rehearing, to a certiorari to correct defects in the record. Cochran w. City of Anniston, Ala.App., 68 So. 544; Clark v. State, 8 Ala.App. 105, 62 So. 987. And the Supreme Court, in the case of Stinson v. State, 223 Ala. 327, 135 So. 571, ruled that a motion for certiorari to correct the record comes too late on application for rehearing.

In the recent case of Huddleston v. State, Ala.App., 64 So.2d 90,1 on rehearing, we denied the application of the State to be permitted to file a motion for the purpose of correcting a defective judgment of •conviction.

The Attorney General’s brief on •original submission contained a certificate to the effect that a copy had been mailed to defendant’s counsel on the date of its filing. In this brief it is stated: “The appellant cites as error the admission in evidence of some exhibits in this case. The State submits that there is no way for the Court of Appeals to determine whether or not the trial court was in error in allowing these exhibits in evidence. These exhibits are not in the transcript or attached to the transcript and are not in fact before this Court.”

Notwithstanding having thus been fully apprised that the exhibits were not before us, counsel elected to stand upon the record as made up and permitted the case to go to decision before attempting to invoke the process of this court to supply the omission.

We are of the opinion that to grant such a petition as is here presented after a decision by this court and an opinion rendered would tend to encourage carelessness in appellate procedure and unduly prolong litigation. We therefore conclude the petition for certiorari comes too late and should be denied.

Application for rehearing overruled.

Petition for certiorari denied.

. Ante, p. 57.