Opinion
No. 43619.
October 25, 1965.
1. Continuance — time to prepare for trial — absent witnesses — refusal to grant, error.
Where five people were willing to testify that defendant indicted for unnatural intercourse had good reputation for peace and for sexual morality in Florida community where he had lived, but prospective witnesses could not come in time for trial set for five days after arrest, and defendant's counsel had not had opportunity to confer with coindictee, failure to grant continuance was error. Sec. 2413, Code 1942.
2. Criminal law — evidence — photographs — inadmissible.
Court correctly refused to admit photographs of premises where crime of unnatural intercourse was alleged to have been committed, where photographs were not clear and would tend to confuse the matter. Sec. 2413, Code 1942.
3. Criminal law — evidence — photographs — admissible.
Three photographs of premises where unnatural intercourse was alleged to have been committed should have been admitted where the yardstick shown in photographs reflected size of stalls, and that was pertinent in weighing testimony offered by State. Sec. 2413, Code 1942.
4. Criminal law — evidence — photographs — prejudicial.
Admission, over objection, of photograph revealing an obscene statement on wall of restroom, where offense of unnatural intercourse was alleged to have been committed, was improper where State did not contend that defendant had anything to do with writing statement or that he knew statement was on wall. Sec. 2413, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, J.
Robert A. Walker, R.M. Sullivan, Hattiesburg, for appellant.
I. The lower court erred in overruling the defendant's motion for a continuance of the cause from November 18, 1964 to January 4, 1965, and the defendant's motion for a continuance of the cause from November 19, 1964 to January 4, 1965. Avery v. Alabama, 308 U.S. 444, 84 L.Ed. 377, 60 S.Ct. 321; Cade v. State, 96 Miss. 434, 50 So. 554; Chandler v. Fretag, 348 U.S. 3, 99 L.Ed. 4, 75 S.Ct. 1; Coker v. State, 82 Fla. 5, 89 So. 222; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; DeAngelo v. State, 187 Miss. 84, 192 So. 444; Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; Ex Parte Jefferson, 62 Miss. 223; Hawk v. Olson, 326 U.S. 271, 90 L.Ed. 61; Knox v. State, 97 Miss. 523, 52 So. 695; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 84 A.L.R. 527; Reed v. State, 94 Fla. 32, 113 So. 630; Rosser v. State, 230 Miss. 573, 93 So.2d 470; State v. Collins, 104 La. 629, 29 So. 180, 81 Am. St. Rep. 150; State v. Fair-Clough, 86 Utah 326, 44 P.2d 692; State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, Ann. Cas. 1917E, 116; State v. Musselman, 101 Wn. 330, 172 P. 346, L.R.A. 1918E, 523; Unger v. Sarafite, 376 U.S. 575, 11 L.Ed.2d 921, 84 S.Ct. 841; Yates v. State, 251 Miss. 376, 169 So.2d 792; Amendments V, VI, XIV, United States Constitution; Art. 3 Secs. 14, 26, Constitution 1890; 22A C.J.S., Criminal Law, Sec. 496b.
II. The lower court erred in sustaining the State's objections to the introduction of photographs Numbered 1, 2, 3, 4, 5 and 6 for identification which were offered by the defendant. Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327; 23 C.J.S., Criminal Law, Sec. 852.
III. The lower court erred in admitting the photograph shown as State's exhibit Number 5 to the witness Lawler's testimony over the objection of the defendant.
IV. The testimony of Detective Dempsey Lawler, the sole witness in chief for the State, was the result of an unlawful search and was inadmissible; and this testimony should not have been admitted by the lower court over the objection of the defendant; so that the lower court erred in overruling defendant's objection and defendant's continuing objection to such testimony, and erred in overruling defendant's motion to exclude all testimony of this witness obtained as the result of such unlawful search. Barnard v. State, 155 Miss. 390, 124 So. 479; Falkner v. State, 134 Miss. 253, 98 So. 691; Feazell v. State, 217 Miss. 879, 65 So.2d 267; Helton v. State, 136 Miss. 622, 101 So. 701; Henry v. State, 253 Miss. 263, 154 So.2d 289; Owens v. State, 133 Miss. 753, 98 So. 233; Rignall v. State, 134 Miss. 169, 98 So. 444; State v. Patterson, 130 Miss. 680, 95 So. 96; Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341; Amendments IV, V, United States Constitution; Art. 3 Secs. 23, 26, Constitution 1890.
V. The district attorney, in the presence of the jury, referred to certain photographs offered in evidence by the defendant as being "rigged", which comment was extremely prejudicial to the defendant's right to a fair and impartial trial; and the failure of the lower court to rule on the objection to such comment by counsel for the defendant constitutes reversible error.
R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: City of Biloxi v. Schambach, 247 Miss. 644, 157 So.2d 386; Eslick v. State, 238 Miss. 666, 119 So.2d 355; Flora v. Fewell, 241 Miss. 345, 131 So.2d 187; Ladner v. State, 148 Miss. 243, 114 So. 341; Lamar v. State, 63 Miss. 265; Lewis v. State, 93 Miss. 697, 47 So. 467; McDaniel v. State, 8 Sm. M. (16 Miss.) 401, 47 Am. Dec. 93; Miles v. State (Miss.), 51 So.2d 214; Orr v. Columbus G.R. Co., 210 Miss. 63, 48 So.2d 630; Poole v. State, 251 Miss. 345, 169 So.2d 828; Rose v. State, 222 Miss. 699, 76 So.2d 835; Slyter v. State, 246 Miss. 402, 149 So.2d 489; Wesley v. State, 37 Miss. 327, 2 Mor. St. Cases 1259, 75 Am. Dec. 62; Wright v. Burk Hall-Tayloe Paint Glass Co., 242 Miss. 679, 136 So.2d 599; Sec. 1520, Code 1942.
Defendant appeals from a judgment of conviction of unnatural intercourse in violation of Mississippi Code Annotated section 2413 (1956).
The questions involved on this appeal are whether the trial court erred (1) in denying defendant's motion for continuance, (2) in refusing to admit certain photographs offered in evidence by defendant, and (3) in admitting a photograph in evidence over the objection of defendant.
(Hn 1) Defendant was arrested on November 11, 1964, and indicted on November 16, 1964. He had no money or property and on November 17, 1964, the court appointed counsel to represent him. Defendant was jointly indicted with one Wood and at the time of arraignment no severance was granted. Upon arraignment, the case was set for the next day, November 18, and a motion for continuance was made and heard. The case was then set over until the next day, November 19, and was tried on that date, on which latter date the motion for continuance was renewed. We are of the opinion that defendant should have been granted the continuance to enable him to prepare for trial and have an opportunity to arrange for his witnesses to attend the trial. This error will not recur, therefore only brief reference will be made to the circumstances.
Defendant is a resident of Tampa, Florida, where he had lived prior to coming to Hattiesburg a few weeks before he was indicted. His counsel learned by telephone that about five people were willing to testify that defendant had a good reputation for peace and violence and for sexual morality in the community where he had lived, but that the prospective witnesses would have to make various arrangements before coming and could not come in time for trial at the time set. It was shown that defendant's counsel had not had an opportunity to confer with Wood, the co-indictee, who was in a Jackson hospital. It was also shown that the State had only one eye witness to the alleged crime, which was alleged to have been committed in a hotel rest room, and that this eye witness had testified on September 17, 1964, in two similar cases involving the same rest room and before the same jury panel before whom defendant would be tried.
We are of the opinion that the failure to grant the continuance was error. Defendant's counsel did not have a reasonable time to investigate and prepare for trial or a reasonable opportunity to secure the witnesses from Florida. These witnesses may or may not have come, but defendant should have had a reasonable opportunity to secure them if he could.
(Hn 2) Defendant assigns as error the refusal of the trial court to admit in evidence certain photographs of the premises where the crime is alleged to have been committed. This involves six pictures, three of which should have been admitted. The court correctly refused to admit photographs identified as Numbers 2, 4 and 5, which are not clear and would tend to confuse the matter. (Hn 3) The yard stick shown in exhibits 1, 3 and 6 reflected the size of the stalls and this evidence was pertinent in weighing the testimony offered by the State.
(Hn 4) The defendant complains of the admission in evidence over defendant's objection of a photograph revealing an obscene statement on the wall of the rest room where the offense is alleged to have been committed. The State does not contend that defendant had anything to do with writing this statement or that he knew the statement was on the wall. These obscene words related to the crime for which defendant was indicted, and the admission of this photograph could not have served any purpose except to prejudice the defendant in the eyes of the jury.
The other assignments of error have no merit. The conviction is reversed and the case remanded for a new trial.
Reversed and remanded.
Ethridge, P.J., and Rodgers, Jones and Smith, JJ., concur.