
    George Nedon FAIRLEY, Jr. v. STATE of Mississippi.
    No. 49962.
    Supreme Court of Mississippi.
    March 9, 1977.
    Roger Dean Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SMITH, Justice, for the Court.

ON MOTION TO STRIKE TRANSCRIPT OF STENOGRAPHIC NOTES

The State has moved to strike the transcript of the stenographic notes upon the ground that notice to the reporter to transcribe was not given within the time limited. Unquestionably, notice to the reporter was not given and the motion to strike was filed within the ten day period prescribed by Supreme Court Rule 16(d).

However, this case involves the conviction of appellant of murder, the notes have already been transcribed and the record is now on file in the office of the Clerk of this Court. We think the circumstances are such that the Court should consider the whole record, including the transcript, notwithstanding the failure to give timely notice. Supreme Court Rule 33.

The motion to strike will, therefore, be overruled.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, BROOM and LEE, JJ., concur.

SUGG and WALKER, JJ., dissent.

SUGG, Justice,

dissenting.

ON MOTION TO STRIKE COURT REPORTER’S NOTES

I dissent because no reason is shown by the record for waiving Miss.Sup.Ct. Rule 16(d) except defendant was sentenced to a life term. I am in sympathy with the decision because Mississippi Code Annotated section 9-13-33 (Supp.1976), which requires a party to notify the court reporter within ten days after perfecting an appeal that the notes of the court reporter are desired for use on appeal, is a harsh rule that may prevent justice being done on appeal. However, the same result could be reached without doing violence to the principle of equal justice under the law by repealing Miss.Sup.Ct. Rule 16(d) and amending Miss. Sup.Ct. Rule 2.

I suggest that Rule 2 be amended by striking the last sentence and designating the remaining portion of the present rule as paragraph (a). I suggest further that paragraph (b) be added as follows:

When an appeal has been perfected to the Mississippi Supreme Court the clerk of the trial court shall notify the court reporter within ten days after the appeal is perfected to transcribe and file his notes unless both the appellant and appel-lee give notice that the notes are not desired on appeal. Section (b) shall be retroactive to all cases which have not been decided by the court.

We laid the foundation for the suggested amendment in Haralson v. State, 308 So.2d 222 (Miss.1975) where we held that Mississippi Code Annotated section 9-13-33 (1972) is a procedural statute that invades the rule making power of this Court. We also held in Haralson that the requirement of giving notice to the court reporter was not jurisdictional and could be waived.

Adoption of the amendment would supersede paragraphs 1, 2 and 3 of Mississippi Code Annotated section 9-13-33 (Supp. 1976) in cases appealed to this Court, but would leave intact paragraphs 4, 5, 6, and 7 of the section. It would insure a review of the evidence before the trial court so that we could determine if substantial justice was reached in each case.

WALKER, J., joins in this dissent.  