179 So. 2d 184 | Miss. | 1965
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.
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.
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.
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. 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.
The defendant complains of the admission in evidence over defendant’s objection of a photograph re
The other assignments of error have no merit. The conviction is reversed and the case remanded for a new trial.
Reversed and remanded.