Sashner v. State

On Rehearing

On November 17, 1970, we delivered our original opinion. On December 2, the Attorney General filed a motion to set aside *408submission, recall of opinion and for a writ of certiorari.

The State informs us if we issue a writ of certiorari for a minute entry of March 4, 1970, that the return would show appellant was on that date arraigned with counsel.

On June 16, 1970, the clerk certified that the-record filed by the .appellant contained “a full,- true and correct transcript of the records had” in the case. This transcript (the record on appeal) was filed here June 17, 1970 and the cause came on for 'submission on briefs July 16, 1970, the appellant’s brief having been filed June 22.

The first proposition of law in the appellant’s brief was:

“A prisoner, accused of a felony, must be arraigned in person, and must plead in person and the record must affirmatively show the prisoner’s presence at those stages of the proceedings against him as well as throughout his trial.”

Supreme Court Rule 18 reads, in pertinent part:

“A certiorari to perfect or bring up a complete record may be awarded, on motion of either party, at any time before the submission of the cause, if its object be to sustain a judgment, without a showing; * * (Italics added). •

We consider that the appellant’s brief which led us to the Perkins opinion, supra, effectively put the State on notice of the deficiency .in the record of instant concern. Accordingly, on authority of Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90; Lipscomb v. State, 37 Ala.App. 379, 68 So.2d 862; and Saylor v. State, 42 Ala.App. 666, 177 So.2d 924, we hold that the State’s motion comes top.late.

Motion denied; application overruled.

ALMON, J., not sitting.