Opinion
Opinion filed January 6, 1945.
CRIMINAL LAW.
Where motion for new trial, omitted from original transcript of record filed in Supreme Court, was not spread on lower court's minutes or included in bill of exceptions, and clerk of lower court, without authority, inserted copy of motion as part of bill of exceptions in transcript, there was nothing reviewable by Supreme Court.
FROM MARSHALL.Error to Criminal Court of Marshall County. — HON. T.L. COLEMAN, Judge.
Proceeding between Bill Perryman and others and the State. Judgment for the State, and the other parties bring error. On the State's motion suggesting a diminution of the record. Motion sustained, and judgment affirmed.
HOPKINS HOPKINS, of Columbia, and McLANE CRAIG, of Lewisburg, for defendant-plaintiff in error.
NAT TIPTON, Assistant Attorney-General, for the State.
The assistant attorney-general has made a motion suggesting a diminution of the record in this case in the following respects:
The transcript of the record as originally made up and filed in this Court did not contain the motion for a new trial made in the court below on behalf of the plaintiffs in error as having been spread upon the minutes of the court nor included in the bill of exceptions. In fact, such was not done but the motion for a new trial was merely filed in the lower court.
It seems that after the transcript had been made up and filed in this Court, the clerk of the lower court without authority inserted in the transcript which had been filed in this Court a copy of the motion for a new trial as a part of the bill of exceptions. In support of the motion, the State filed the affidavit of the clerk of the lower court.
This being the case, there is nothing capable of review at the hands of this Court. Chattanooga Iron Coal Co. v. Hanssard, 143 Tenn. 553, 226 S.W. 1045; Bailey v. American Glanzstoff Corp., 163 Tenn. 206, 42 S.W.2d 347.
The motion suggesting a diminution of the record is sustained and the judgment of the lower court is affirmed.