(dissenting in part).
“The majority of the court have not only given an affirmative answer to Question 1, but have gone further and have determined that the trial court in the case under consideration in the Court of Appeals acted within a reasonable time.
“While we entertain some doubt as to whether an extension of time for the filing of the court reporter’s transcript of the evidence may be extended after the expiration of the sixty day period, we entertain the view that in any event such extension must be requested and acted upon within ninety days from the date on which the appeal was taken or within ninety days from the date of the court’s ruling on the motion for new trial, whichever date is later. We think such is the clear legislative intent of the provisions of Act No. 461, approved July 12, 1943 (1943 Gen.Acts, p. 425, as amended by Act No. 97, approved February 9, 1956, Acts of Alabama 1956, Vol. 1, p. 143).
“The holding of the majority will have the effect of making it almost impossible for this court and the Court of Appeals to determine when a cause is subject to dismissal although the transcript of the record has not been filed in this court within the requisite time according to the certificate of appeal, for there will be no way to determine whether an extension of time for the filing of the reporter’s transcript of the evidence will be granted by the trial court at some later date. We also disagree with the majority in what appears to be an effort to determine that in the case at hand the trial court did act within a reasonable time. We feel that that question addresses itself to the Court of Appeals in the first instance.
“I am in accord with the majority’s answer to the second question. ¡
“Goodwyn, J., concurs in the views expressed by Lawson, J.”Since,- as is pointed out by the dissenting opinion, the holding of the Supreme Court “appears to be an effort to determine that in the case at hand the trial court did act within a reasonable time,” we have, ex mero motu, set the submission aside, restored the cause to the docket, and have considered it on its merits.
The defendant was convicted of the offense of receiving, etc., stolen property, knowing the same was stolen and not having the intent to restore it to the owner.
The Assistant Attorney General has carefully and accurately set out the tendencies of the evidence. We copy the following statement from his brief:
“The appellant in this case did not take the witness stand. The only parties who testified were State’s witnesses, J. T. Savage, President of Graveley of Mobile, Inc., whose place was burglarized, and George Fred Johnson and Anthony Roberts,' the *44two young airmen who admitted they stole from the Graveley store a used adding machine, two new outboard motors which bore prominent decals showing their brand name and the selling merchant’s name, and approximately $50.00 in change, close to midnight on July 8, 1955.
“About a week prior to the burglary, Johnson, who was known to be in the United States Air Force by Appellant, had gone to the service station of Appellant who, when asked if he didn’t need an adding machine, replied, ‘Yes, if you know where I can get hold of a good one, I will give you $50.00 for one.’
“Earlier on the day of the burglary, Johnson had gone by the station of Appellant, for whom he had on prior occasions brought change to be used in his business, and there Appellant asked Johnson to get him some change, but Appellant did not give him any money with which to get it.
“Less than two hours after the burglary, Johnson and Roberts took the stolen property to Appellant’s unlighted house trailer, woke him up, and sold it to him. After waking the Appellant around 1:00 A. M. 'Johnson stated, ‘Well, I’ve got that adding machine you said you would like to have,’ to which Appellant replied that he didn’t have any use for one, but added, ‘Let me see it.’ After seeing the machine he again stated he had no use for one, so Johnson said: ‘Well, my friend has got two outboard motors out there in the car that he would like to sell. Do you want to look at them? Maybe you can buy all three at a pretty good price.’ Appellant replied, ‘Well, I’ll look at them.’ Roberts brought the motors inside where they were examined pretty closely under the light by Appellant. After some discussion about a price, Appellant stated that he didn’t need them but since the boys needed money badly he would buy them, and he said if they wanted them back they could get them for the same price. Appellant did not ask where they got the motors or whose they were because, according to Johnson, ‘We told him.’
“Then the boys asked Appellant whether he wanted the $40.00 or $50.00 worth of change that they had, and he said he could use it at his station. He stated that he didn’t have enough money to pay them in full but that he would give them what he had and that they could get the rest the next day. They received between $50.00 and $70.00 that night.
“After the transaction had been made, but before the boys received any money, Appellant instructed them to put the outboard motors underneath the bed so they wouldn’t be in the narrow trailer hall.
“Next day Johnson went to Appellant’s station where he received between $150.00 and $180.00, including the money he got the night before, for the two motors, the adding machine and the change. While there he saw the adding machine, which he had sold to the Appellant the night before, sitting on the desk. He did not recall whether or not there was a ‘for sale’ sign on it. That night Roberts saw a city detective bring the two stolen outboard motors out of Appellant’s trailer.”
It is clear from the evidence that no error resulted from the court’s refusal of the general affirmative charge requested in writing by appellant. Middleton v. State, 27 Ala.App. 564, 176 So. 613.
Defendant contends that the court committed reversible error in its rulings during the Solicitor’s argument to the jury. The following appears in the record:
“Mr. Seale: We object, your Hon- or, to the Solicitor’s statement to the jury that they may consider the character and demeanor of the defendant, when the defendant was not even put on the stand to testify. The court overruled the objection, and defendant reserved an exception to the court’s ruling.”
Nothing appears in the record tending to show the Solicitor’s statement in its context.
*45In Brothers v. State, 236 Ala. 448, 183 So. 433, 436, the court said:
“If, instead of taking the stand he (defendant), was seeking to make evidence for himself by his demeanor before the jury, this was the legitimate subject of comment.
“The trial court was in position to see whether this line of argument was within the rule that counsel may draw any inference which the facts tend to support. The conduct of accused during the trial is a proper subject of comment. 1 Thompson on Trials, § 989; Inman v. State, 72 Ga. 269, 277, 278.
“The jurors were the judges as to whether such inference was well founded.”
Since the record does not sufficiently show the connection of the argument, we cannot say the statement as to defendant’s demeanor was improper.
If the prosecutor’s statement contains both material and immaterial matter, objection thereto as a whole is properly overruled. Kelley v. State, 32 Ala.App. 408, 26 So.2d 633.
The following also appears in the record:
“Mr. Seale: If your Honor please, we object to Mr. Strickland’s remarks as to why the defendant did not take the stand.
“The court sustained the objection and instructed the jury not to consider that portion of Mr. Strickland’s argument as for or against the defendant.”
The objection having been sustained and the jury duly admonished not to consider the argument, no reversible error appears. Davis v. State, 259 Ala. 212, 66 So.2d 714; Willingham v. State, 261 Ala. 454, 74 So.2d 241.
The judgment of the trial court is affirmed.
Affirmed.