McClary v. State
Decision Date | 07 June 1973 |
Citation | 282 So.2d 384,291 Ala. 481 |
Parties | In re Henry L. McCLARY v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. S.C. 246. |
Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., Montgomery, Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for petitioner.
Thomas M. Haas, and Ian F. Gaston, Mobile, for respondent.
The defendant McClary was convicted in Mobile County for selling drugs in violation of an Act listed in the 1958 Recompilation as Tit. 22, § 258(21). The Court of Criminal Appeals decided all the questions raised adversely to the defendant except one relating to purported argument of counsel. That court reversed the judgment and we granted certiorari.
We quote from the opinion of the Court of Criminal Appeals as it pertains to the question here presented:
'Further, during summation by the prosecutor, the court reporter's transcribed notes show the following:
'For the error shown in overruling appellant's objections to the District Attorney's argument, as above described, the judgment is reversed and the cause remanded.
'REVERSED AND REMANDED.
'All the Judges concur.'
Based upon our investigation, this is the first time any appellate court has ever reversed a case for improper argument of counsel where there was a failure to point out substantially the language deemed objectionable. Based on the statement in the record, objection was made to a statement concerning a sale Of a person 12, 10 or 15 years old and not a sale To persons of that age, but we are not informed, by this fragmentary objection as to what the assistant district attorney really said.
In Flowers v. State, 269 Ala. 395, 113 So.2d 344, it was said:
In Cox v. State, 280 Ala. 318, 193 So.2d 759, this court said:
In Gray v. State, 19 Ala.App. 550, 98 So. 818, the Court of Appeals said:
'The remarks of the solicitor to which exceptions were reserved are too fragmentary to present the questions insisted upon. * * * in order for this court to intelligently pass upon the question, enough of the remarks of the solicitor (now D.A.) must be incorporated in the record to inform the court as to what was really said, and not mere disjointed sentences of the solicitor's speech.'
Gray was followed in Pate v. State, 32 Ala.App. 365, 26 So.2d 214, and Johnson v. State, 35 Ala.App. 645, 51 So.2d 901.
That same court in an opinion by Harwood, J., said in Ferguson v. State, 36 Ala.App. 358, 56 So.2d 118:
Later, in * * *'Hamilton v. State, 43 Ala.App. 192, 186 So.2d 108, cert. den., 279 Ala. 687, 186 So.2d 114, that court held that when the court reporter had stated the objection to argument 'to the Effect that * * * etc.,' still 'the record does not sufficiently disclose what was said in its contest for us to say that the argument was improper.'
The fragmentary objection contained in the record does not meet the requirements of the authorities cited supra and the trial court's action in overruling the stated objection did not constitute reversible error.
We note that in each of the three cases cited by the Court of Criminal Appeals on this point the objectionable remarks of counsel are quoted in the opinion.
If the holding of the Court of Criminal Appeals were allowed to stand, then a resourceful attorney, in a larceny case, could make the identical objection and statement as made here, correctly have the objection overruled, as here, and then secure a reversal. That illustrates the need for the rule that the remarks deemed objectionable should be fully quoted, or substantially so, in an objection to improper argument.
This rationale is supported by the rule applying to...
To continue reading
Request your trial-
Davis v. State
... ... Reeves v. State, 518 So.2d 168 (Ala.Cr.App.1987); Ervin v.State, 399 So.2d 894, 898 (Ala.Cr.App.1981), cert. denied, 399 So.2d 899 (Ala.1981); Langford v. State, 354 So.2d 297 (Ala.Cr.App.), rev'd on other grounds, 354 So.2d 313 (Ala.1977); McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973). Therefore, the appellant's contentions are contrary to the law at the time of his trial, and he has not shown that his attorneys were ineffective with respect to this claim ... Claim that Method of Execution is Unconstitutional ... ...
-
Grady v. State
...the statement, "If you read the papers you know how long people stay locked up ," though somewhat fragmentary (see McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973)) and not directly referring to the possibility of parole or the like, does intimate strongly that any prison term meted out......
-
Carpenter v. State, 6 Div. 154
...in Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973), and McClary v. State, 51 Ala.App. 30, 282 So.2d 379, reversed, 291 Ala. 481, 282 So.2d 384 (1973), wherein the comments made by the prosecuting attorney suggested that the appellants had committed more than one offense to more than one......
-
Nobis v. State
... ... In fact, so little of what the District Attorney said has been recorded for our review that the context of the remark cannot be ascertained. In this sense appellant's objection was fragmentary. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973); Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978) cert. denied, 365 So.2d 1258 (Ala.1979). In McClary, supra, our Supreme Court quoted with approval the following language found in Gray v. State, 19 Ala.App. 550, 98 So. 818, 819 (1924): ... "The ... ...