Griggs v. State , 268 S.W. 940 ( 1924 )

On Motion for Rehearing.

Appellant seeks, in conjunction with his motion for rehearing, a writ of certiorari to compel the placing in the transcript on appeal of a bill of exceptions which seems to have been omitted, and which is presented as a bystanders’ bill. Accompanying the motion is a copy of the bill and the affidavit of appellant, and we have examined said bill In order to determine whether we should grant the certiorari. As part of the motion and application for certiorari, and in order to show that the hill of exceptions referred to had been refused by the trial court, the bill of exceptions which was presented to the cornet below, and which was returned to appellant’s counsel with a letter from the trial court giving his reasons for not approving it, is attached to and made a part of the application. The supposed bystanders’ bill which we are asked now to have incorporated in the transcript is also attached. Comparison of the bill of exceptions which was presented to the court and by him refused, and the bystanders' bill which was thereafter prepared and attested by three bystanders, makes it perfectly apparent that the two are not identical either in form or in substance. It is always' held to be necessary predicate to induce consideration of a bystanders’ bill that it be shown that such bill was presented to the trial court and by him refused. There is no such showing in the application for certiorari or in the record. If the bill, now certified as a bystanders’ bill, had been presented to the court below for his approval, we have no means of knowing that he would not have approved it. It is not the correct ■ practice, nor can we uphold it in this case, to prepare and here present, as a bystanders’ bill, that which is not the bill presented to the trial court. For the reason that the alleged bystanders’ bill is materially different from the one appearing to have been presented to the court below for his approval and which was refused, we are not at liberty to consider it, nor to grant the certiorari requiring that it be made a part of the transcript.

The other matters in appellant’s motion for rehearing have been considered, and none of them are deemed sufficient to call for the granting of same.

The motion for rehearing will be overruled.