Opinion
78-605.
September 7, 1979.
Petition for Writ of Certiorari to the Court of Criminal Appeals, 374 So.2d 922.
Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for petitioner.
Donald E. Brutkiewicz, Mobile, for respondent.
Writ quashed as improvidently granted.
By quashing the writ, we are not to be understood as agreeing with the following statement contained in the Court of Criminal Appeals' opinion:
". . . unless the State takes steps to supplement the record on appeal with a court reporter's transcript of the closing arguments in such instances, we can give no weight to the fact that a prosecutor prefaces his comments with a statement that defense counsel had previously argued the same matter. . . ."
Although a reporter's transcript is the desirable mode of preserving the record, Ex parte Whitt, 370 So.2d 736 (Ala. 1979) does not preclude other appropriate means of constructing a record of counsel's oral arguments in the context of the issue here presented.
By quashing the writ, we are to be understood as agreeing with the holding of the Court of Criminal Appeals reversing the judgment of conviction on the grounds of illegal jury argument of the District Attorney, which holding would be correct in the posture of the instant case even assuming the record reflected the alleged argument of the defense counsel.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., and BLOODWORTH and MADDOX, JJ., dissent.
We think the argument of the assistant district attorney was not illegal, as we conclude it was "argument in kind."
TORBERT, C.J., concurs.