Lane v. State, 6 Div. 127
Decision Date | 04 May 1971 |
Docket Number | 6 Div. 127 |
Citation | 247 So.2d 679,46 Ala.App. 637 |
Parties | Jerry Lee LANE v. STATE. |
Court | Alabama Court of Criminal Appeals |
William T. Kominos, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
The appellant was indicted, tried, and convicted for the offense of murder in the first degree. His punishment was fixed by the jury at life imprisonment in the penitentiary. In accordance with the jury verdict he was duly adjudged by the court to be guilty of murder in the first degree and sentenced to imprisonment in the penitentiary for life.
After the evidence was concluded the appellant made the following motion:
'Your Honor, at this time, we would request that the court reporter take down and report the final arguments of both the State and defense.'
That motion was granted by the court and the court instructed the court reporter to take down the arguments.
The arguments of the prosecuting attorneys and the attorneys for the appellant do not appear in full in the transcript. But the transcript does show the portions of the argument of the prosecuting attorneys objected to by the appellant and the rulings of the trial court thereon and any exceptions that may have been taken thereto. The appellant complains that error exists because the transcript does not set out in full the arguments of counsel. The indictment alleges that appellant killed the deceased by stabbing him with a knife. The evidence strongly supports the indictment.
During the district attorney's argument the following occurred:
'MR. McDONALD: (Addressing the jury):--But I want to tell you this would be an improper argument, because we are just supposed to comment on the evidence, but, since he commented on it, I think it has to be answered.
In connection with the District Attorney's argument, appellant made the following objections:
'That is the ultimate question to be decided by the jury.
We first turn our attention to the complaint made by the appellant that the transcript does not contain all of the arguments of counsel.
Tit. 13, § 262, Code of Alabama, 1940, recompiled 1958, relating to the duties of the court reporter is as follows:
* * *'
That Section of said Code does not require the court reporter to make full stenographic notes of the argument of counsel. However, the trial judge did instruct the court reporter to take down the argument of counsel in the case before us. We are not informed that the court reporter failed to do so. Assuming that he obeyed the instruction of the trial court, a transcript thereof could have been made available. Appellant has not made any effort to ascertain if the arguments were taken down by the court reporter or to have them made a part of the transcript. The law of Alabama has afforded him two remedies by which the arguments could have been made a part of the transcript of the proceedings had in the appellant's trial.
Tit. 7, § 827(1a), Code of Alabama, 1940, recompiled 1958, in pertinent part, is as follows:
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