The opinion
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ON MOTION FOR REHEARING.
LATTIMORE, Judge.
The state moves for a rehearing, asserting that the motion for severance, which we held should have been granted, was filed after the trial term of the court below ended, and that said motion for severance was not presented in the trial court during term time nor considered. Examination of the record shows that for some reason unknown to this court, the motion for severance which appears in the record bears date and file mark as of March 21, 1925. The trial in the court below began on February 21, 1925. The trial term ended on March 6th of said year.
We note, however, that in appellant’s motion for new trial filed on March 6th, 1925, he complains of the overruling of his motion for severance. We also note that in his bill of exceptions No. 1 he complains of the refusal of the court to grant a severance, a copy of his application therefor being set out in said bill of exceptions and showing to have been presented on February 21, 1925. Also in resistance to the state’s motion for rehearing herein appellant presents duly certified copies of minute entries of the court below showing the docket orders at the trial term of the court, from which it appears that on February 21, 1925, the court made the folloming order: “2-21-25. * * * Defendant’s motion for severance overruled and defendant excepts and said cause proceeded to trial.” It is to be deeply regretted that records in causes involving the lives and liberties of citizens should not come to appellate courts exactly portraying the proceedings in the court below. There seems no excuse for such failure in this record. When there is, we have to do the best we can to get at the truth of the record. We feel sure from the facts before us that the motion for severance was before the trial court, and was refused on the day this trial began.
The motion for rehearing is overruled.
Overruled.