¶1(concurring).
¶2I concur in Judge Oliver’s opinion with some reservations.
¶3While it is clear that counsel for plaintiff in error Sweeney fully intended to file a plea in abatement pointing out that the indictment did not correctly state this defendant’s name, it is equally clear that for some reason he did not file it. There is nothing in the technical record that indicates any such filing, arid thus there is nothing for us to consider on the assignment as correctly pointed out by Judge Oliver citing our Supreme Court in Gray v. State, 194 Tenn. 234, 250 S.W.2d 86.
¶4I am troubled by the implication that Sweeney has been deprived of what could well have been a valid and successful attack on the indictment through a failure on the part of a State agent, his court-appointed attorney, to file the plea in abatement and thus preserve his client’s right to an appellate review. As our Supreme *951Court has consistently held since Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378, in cases “in which it affirmatively appears that an indigent defendant has been deprived of an appellate review of his case on the merits by reason of delay or non-action on the part of state agencies . we have no alternative but to reverse . and remand it for a new trial, in order that a proper record may be made and in order that the accused may be afforded an effective appellate review if desired.”
¶5Nelms, and the later cases (particularly the unreported opinion in James v. Jamison et al v. State, released May 8, 1969), dealt with the failure or non-action of court-appointed attorneys for indigents relating to the preparation and filing of bills of exceptions. While it may be that the failure noted here was just as damaging to the indigent defendant whose right to a full appeal was seemingly thwarted by the failure of his counsel to file the plea in abatement apparently prepared as read into the bill of exceptions, I do not believe this Court at this time should undertake to extend the holdings in the Nelms type cases to cover oversights in making up and preserving the technical record. It could be that the plea was filed but through oversight was left out of the technical record. If so, it could be, or could have been, supplied by a motion suggesting diminution of the record.
¶6My reluctance to urge voidance of the conviction of Sweeney in order that his case could be remanded for a proper filing and disposition on the aborted plea in abatement is probably colored by my tentative view that an indictment naming David Sweeney as a defendant could well be valid even though the other surname of the defendant is incorrectly stated. There remains no doubt in my mind from reading the record that the David Sweeney accused in this case was the person who escaped from jail along with the co-defendant Donald R. Russell and that he was fairly and justly convicted. I would hold any error involved to be harmless.