On tbe suggestion of appellant, a writ in the nature of certiorari sur diminution of record issued from this court on January 15, 1924, requiring the court below to “certify and send to us, together with this writ, on or before the fourth Monday of January, 1924, a paper designated ‘Motion for a New Trial,’ dated September 14,1923, with an affidavit of appellant attached thereto, a certified transcript of the notes of a statement by appellant just prior to pronouncement of sentence on December 7,1923, and the remarks of the court made in reference thereto, so far as they appear on the stenographer’s notes, and the petition of appellant filed in said court on January 4, 1924, and the opinion and order of the court made on said petition, as they appear in the records of said courtwe have before us a return from the Honorable James B. Macfarlane stating that these papers and *59stenographer’s notes have never been made, and are not, properly, part of the record in the case.
The rule in certiorari snr diminution of record in civil cases, here relied on, where the return of the court below is accepted as conclusive, and the complaining party is left to his action for false return, does not necessarily govern in criminal cases. A civil suit for false return is of little avail to a prisoner in jail, and when, as here, the record involves sentence of death for a capital offense, it would be practically of no avail to leave the prisoner to his civil remedy; therefore the authorities cited in the brief submitted by the Commonwealth do not control.
It is now ordered that all of the above mentioned papers and stenographer’s notes, after the latter have been transcribed and certified by the stenographer, shall be transmitted to this court, and we will then decide, in view of the return of the judge of the court below, and such supplemental statement of facts as he may add thereto, how far, if at all, they properly constitute part of the record for purposes of review, after which judgment, this court will make such order in the premises as may be warranted.
See the next ease.