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  • 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.
Judges
  • GILLESPIE, J.
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  • 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.
Judges
  • GILLESPIE, J.
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Smart Summary

Factual and Procedural Background

Defendant was arrested on November 11, 1964, and indicted on November 16, 1964, for a violation of Mississippi Code Annotated section 2413 (1956) (unnatural intercourse). The court appointed counsel for the defendant on November 17, 1964. Defendant was jointly indicted with a co-indictee, Wood, and at arraignment no severance was granted. The case was initially set for trial November 18, 1964, then set over to November 19, 1964, and was tried on November 19, 1964. Motions for continuance (requested to January 4, 1965) were made and renewed but denied.

Defendant resided in Tampa, Florida, prior to coming to Hattiesburg a few weeks earlier. Defense counsel learned by telephone that roughly five persons in Florida were willing to testify to the defendant's good reputation for peace and for sexual morality, but those witnesses could not make the trial on the dates set. Counsel had not had an opportunity to confer with the co-indictee, who was in a Jackson hospital. The State presented a single eyewitness who had previously testified in two similar cases in the same restroom and before the same jury panel. Photographs of the restroom/premises were offered by both sides and were contested at trial. Defendant was convicted; he appealed.

Legal Issues Presented

  1. Whether the trial court erred in denying defendant's motion for a continuance to permit investigation and attendance of witnesses.
  2. Whether the trial court erred in refusing to admit certain photographs offered by the defendant.
  3. Whether the trial court erred in admitting, over objection, a photograph offered by the State that revealed an obscene statement on the restroom wall.

Arguments of the Parties

Appellant's Arguments

  • Motion for continuance: The lower court erred in overruling motions for continuance (from Nov. 18 and Nov. 19 to Jan. 4) because defendant's counsel had inadequate time to prepare and to secure out-of-state reputation witnesses; numerous authorities were cited in support. (Assignment I)
  • Photographs offered by defendant: The lower court erred in sustaining State's objections to defendant's photographs numbered 1–6 for identification. (Assignment II)
  • State's photograph admitted over objection: The lower court erred in admitting State's exhibit Number 5 over objection. (Assignment III)
  • Alleged unlawful search: Testimony of Detective Dempsey Lawler (the State's sole witness in chief, per the briefs) was allegedly the product of an unlawful search and therefore inadmissible; the court erred in overruling objections and denying motions to exclude this testimony. (Assignment IV)
  • Prosecutor's comment: The district attorney, in the presence of the jury, referred to certain defendant-offered photographs as "rigged," which was prejudicial and the court's failure to rule on the objection was reversible error. (Assignment V)

Appellee's Arguments

  • The appellee's brief "cited and discussed the following authorities" in response to the appeal (listed in the opinion). The brief thus presented legal authorities in defense of the trial court's rulings. The opinion reproduces the list of cases cited by appellee. No further detail of appellee's argumentation is provided in the opinion text beyond the listing of authorities.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Avery v. Alabama, 308 U.S. 444, 84 L.Ed. 377, 60 S.Ct. 321 Cited by appellant in support of the continuance claim (Assignment I). The court addressed the continuance claim and found the failure to grant a continuance was error.
Cade v. State, 96 Miss. 434, 50 So. 554 Cited by appellant in support of the continuance claim (Assignment I). The court reversed on the continuance ground.
Chandler v. Fretag, 348 U.S. 3, 99 L.Ed. 4, 75 S.Ct. 1 Cited by appellant in support of the continuance claim (Assignment I). The court found error in denying the continuance (as to the factual circumstances described).
Coker v. State, 82 Fla. 5, 89 So. 222 Cited by appellant in support of the continuance claim (Assignment I). The court reversed the conviction based in part on the continuance ruling.
Cruthirds v. State, 190 Miss. 892, 2 So.2d 145 Cited by appellant in support of the continuance claim (Assignment I). The court found error in refusing the continuance.
DeAngelo v. State, 187 Miss. 84, 192 So. 444 Cited by appellant in support of the continuance claim (Assignment I). The court reversed on the continuance issue.
Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 Cited by appellant in support of the continuance claim (Assignment I). The court determined the denial of continuance was error; the opinion does not expressly adopt Escobedo's holdings in text beyond listing.
Ex Parte Jefferson, 62 Miss. 223 Cited by appellant in support of the continuance claim (Assignment I). The court reversed the conviction on the continuance ground.
Hawk v. Olson, 326 U.S. 271, 90 L.Ed. 61 Cited by appellant in support of the continuance claim (Assignment I). The court found error in denying the continuance; no further specific application of Hawk is stated.
Knox v. State, 97 Miss. 523, 52 So. 695 Cited by appellant in support of the continuance claim (Assignment I). Court reversed as to the continuance denial.
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 84 A.L.R. 527 Cited by appellant in support of the continuance claim (Assignment I). The opinion found the denial of a continuance deprived defendant of reasonable opportunity to prepare; it reversed.
Reed v. State, 94 Fla. 32, 113 So. 630 Cited by appellant in support of the continuance claim (Assignment I). The court reversed on the continuance issue.
Rosser v. State, 230 Miss. 573, 93 So.2d 470 Cited by appellant in support of the continuance claim (Assignment I). The court found the continuance denial was error.
State v. Collins, 104 La. 629, 29 So. 180, 81 Am. St. Rep. 150 Cited by appellant in support of the continuance claim (Assignment I). The court determined the denial of continuance was error; no specific reliance on this case is detailed.
State v. Fair-Clough, 86 Utah 326, 44 P.2d 692 Cited by appellant in support of the continuance claim (Assignment I). The court reversed on the continuance ground.
State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, Ann. Cas. 1917E, 116 Cited by appellant in support of the continuance claim (Assignment I). Court reversed due to error in denying continuance.
State v. Musselman, 101 Wn. 330, 172 P. 346, L.R.A. 1918E, 523 Cited by appellant in support of the continuance claim (Assignment I). The court found the continuance denial to be error.
Unger v. Sarafite, 376 U.S. 575, 11 L.Ed.2d 921, 84 S.Ct. 841 Cited by appellant in support of the continuance claim (Assignment I). The opinion cites Unger among authorities; the court nonetheless reversed for denial of continuance.
Yates v. State, 251 Miss. 376, 169 So.2d 792 Cited by appellant in support of the continuance claim (Assignment I). The court reversed on continuance grounds; no further specific application is stated in text.
Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327 Cited by appellant in support of defendant's objection to exclusion of photographs (Assignment II). The court reviewed the photographs and ruled three (Nos. 1, 3, 6) should have been admitted and others (Nos. 2, 4, 5) properly excluded as unclear/confusing.
Barnard v. State, 155 Miss. 390, 124 So. 479 Cited by appellant in support of the unlawful search/exclusion argument (Assignment IV). The opinion does not sustain the unlawful-search assignment; it states other assignments have no merit.
Falkner v. State, 134 Miss. 253, 98 So. 691 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The court did not adopt this argument as a basis for reversal; other assignments were deemed without merit.
Feazell v. State, 217 Miss. 879, 65 So.2d 267 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The court did not rely on this authority to reverse; the court reversed for other errors.
Helton v. State, 136 Miss. 622, 101 So. 701 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The opinion does not state that this authority controlled the result; the unlawful-search assignment was not sustained.
Henry v. State, 253 Miss. 263, 154 So.2d 289 Cited by appellant re: unlawful-search/exclusion (Assignment IV). Court found no merit in the other assignments of error beyond those discussed.
Owens v. State, 133 Miss. 753, 98 So. 233 Cited by appellant re: unlawful-search/exclusion (Assignment IV). No specific application in the opinion; assignment considered without merit.
Rignall v. State, 134 Miss. 169, 98 So. 444 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The court did not base reversal on this authority; unlawful-search claim was not sustained.
State v. Patterson, 130 Miss. 680, 95 So. 96 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The opinion does not record specific application of this precedent to the ultimate disposition.
Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377 Cited by appellant re: unlawful-search/exclusion (Assignment IV). The court did not find the unlawful-search contention meritorious on appeal.
Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341 Cited by appellant in support of exclusionary-rule/unlawful-search argument (Assignment IV). The opinion does not rely on Weeks to reverse; the court's reversal rested on continuance and improper photographic evidence.
City of Biloxi v. Schambach, 247 Miss. 644, 157 So.2d 386 Cited and discussed by appellee in its brief. The opinion lists this authority as cited by appellee; the court's written opinion does not expressly adopt or apply this case in its analysis.
Eslick v. State, 238 Miss. 666, 119 So.2d 355 Cited and discussed by appellee in its brief. The opinion notes the citation; the court's analysis does not explicitly rely on this case in the text provided.
Flora v. Fewell, 241 Miss. 345, 131 So.2d 187 Cited and discussed by appellee in its brief. No specific application of this precedent is articulated in the opinion's text.
Ladner v. State, 148 Miss. 243, 114 So. 341 Cited and discussed by appellee in its brief. The opinion does not expressly adopt this authority in its reasoning.
Lamar v. State, 63 Miss. 265 Cited and discussed by appellee in its brief. The court's opinion does not specify application of this case.
Lewis v. State, 93 Miss. 697, 47 So. 467 Cited and discussed by appellee in its brief. The opinion lists the citation; no explicit reliance is shown in the text.
McDaniel v. State, 8 Sm. M. (16 Miss.) 401, 47 Am. Dec. 93 Cited and discussed by appellee in its brief. No specific application is set out in the opinion.
Miles v. State (Miss.), 51 So.2d 214 Cited and discussed by appellee in its brief. The opinion does not show explicit application of this authority.
Orr v. Columbus G.R. Co., 210 Miss. 63, 48 So.2d 630 Cited and discussed by appellee in its brief. No explicit use of this case appears in the court's written reasoning.
Poole v. State, 251 Miss. 345, 169 So.2d 828 Cited and discussed by appellee in its brief. The court's opinion does not recite specific reliance on this authority.
Rose v. State, 222 Miss. 699, 76 So.2d 835 Cited and discussed by appellee in its brief. No explicit application in the opinion's text.
Slyter v. State, 246 Miss. 402, 149 So.2d 489 Cited and discussed by appellee in its brief. The opinion does not indicate direct application of this case.
Wesley v. State, 37 Miss. 327, 2 Mor. St. Cases 1259, 75 Am. Dec. 62 Cited and discussed by appellee in its brief. No explicit application is recorded in the opinion.
Wright v. Burk Hall-Tayloe Paint Glass Co., 242 Miss. 679, 136 So.2d 599 Cited and discussed by appellee in its brief. The court's opinion does not expressly rely on this authority in the reasoning provided.

Court's Reasoning and Analysis

The court framed the appeal around three principal questions: denial of continuance, exclusion/admission of photographs, and admission of a State photograph over objection.

On the continuance issue (Hn 1), the court recited the timeline: arrest Nov. 11; indictment Nov. 16; appointed counsel Nov. 17; arraignment and trial setting Nov. 18–19; motions for continuance made and renewed. The court summarized relevant facts supporting a continuance: defendant's recent arrival from Tampa, Florida; telephone notice that about five out-of-state witnesses were willing to testify to defendant's good reputation for peace and sexual morality but could not appear on the short notice; defense counsel had not had an opportunity to confer with the co-indictee who was hospitalized; and the State had only one eyewitness who had previously testified in similar cases. From these circumstances the court concluded defense counsel had not been afforded a reasonable time to investigate, prepare, or arrange for the out-of-state witnesses. The court held the trial court erred in denying the continuance.

On photographic evidence (Hn 2 and Hn 3), the court examined six photographs offered by the defendant. It concluded exhibits numbered 2, 4 and 5 were not clear and would tend to confuse the matter, and therefore the trial court correctly refused their admission. The court found exhibits 1, 3 and 6 should have been admitted because each showed a yardstick reflecting the size of the stalls; that measurement was pertinent to evaluating the State's testimony about events in the restroom stalls.

Regarding the State's admitted photograph (Hn 4) which revealed an obscene statement on the restroom wall, the court held its admission over defendant's objection was improper. The State made no contention that defendant wrote or knew of the obscene writing; the court reasoned that the photograph served only to prejudice the defendant by associating obscene language with the location of the alleged offense, and therefore admission could not have served any legitimate evidentiary purpose relevant to the defendant's guilt.

The opinion states that the remaining assignments of error (other than those discussed) had no merit. Based on the errors identified—primarily the improper denial of a continuance and the improper admission of the prejudicial photograph—the court reversed the conviction and remanded the case for a new trial.

Holding and Implications

REVERSED AND REMANDED

Consequences: The court reversed the conviction for unnatural intercourse and remanded the case for a new trial. The direct effect is that the defendant's conviction is vacated and the matter is returned to the trial court for retrial consistent with the opinion (allowing appropriate continuance for preparation and excluding the prejudicial restroom-wall photograph while admitting the properly probative photographs). The opinion does not announce broader legal doctrines beyond the application of existing principles to these facts; no new precedent or sweeping rule beyond the disposition is articulated in the text.

Show full summary ...

BUTLER v. STATE

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.

GILLESPIE, J.

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.

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BUTLER v. STATE
(Oct 25, 1965)