State v. Curlee

ON MOTION FOR REHEARING

WALTERS, Chief Judge.

The State has moved for rehearing, bringing to our attention by an attached affidavit of the district attorney that the incorrect instruction was tendered by the defendant. While conceding that the record upon which the appeal was docketed, briefed and decided does not include requested instructions of the parties, the State nevertheless asks us to draw some conclusions from the affidavit and the difference in the kind of paper used for the erroneous instruction when compared with the paper used for the other instructions. We are urged to apply the…