
    Arthur VIVERETT v. STATE of Mississippi.
    No. 46911.
    Supreme Court of Mississippi.
    Oct. 9, 1972.
    Rehearing Denied Nov. 13, 1972.
    Dannye L. Hunter, Forest, for appellant.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   BRADY, Justice:

This is an appeal from the Circuit Court of Scott County, Mississippi, wherein the appellant was found guilty of breaking and entering with felonious intent to rape or ravish a young girl. From a verdict of guilty and a judgment based thereon sentencing the appellant to fifteen years in the state penitentiary at Parchman, Mississippi, this appeal is prosecuted.

Stated as tersely as possible, the cardinal facts are as follows: On July 11, 1971, a young black male broke into the home of John H. Jones near Sebastapol, Mississippi, and attempted to rape Mr. Jones’ thirteen year-old daughter, Pequita. The Negro was frightened by her screams and fled through the window by which he had entered. Mr. Jones immediately took Mrs. Jones and Pequita to look for the intruder. They went first to the home of Bennie Burkes, who worked and lived on the Jones’ farm. There Mr. Jones inquired about Bennie’s boys and was told that none of them were at home that night. Mr. Jones then proceeded over to another house on his place where appellant lived with his wife and her parents. After establishing that appellant was at home, Mr. Jones requested that appellant come out, which he did. There is conflicting testimony as to whether Pequita immediately identified appellant as the intruder or if she asked appellant, “Did you do it?” Appellant was placed in the Jones’ car while Mr. Jones called the sheriff and related the facts to him. Mr. Jones then carried the appellant to the home of appellant’s sister-in-law and asked that they hold him there until he returned with the sheriff. The Jones family, appellant, the sheriff and other police officers then went to the Jones’ home to make an investigation. The sheriff found footprints leading from the corner of the house onto a road that runs just a few feet from the house. The sheriff followed the tracks to the house where appellant lived, after once losing them due to the hard ground. A pair of tennis shoes was found under appellant’s bed with treads matching those left by the tracks from the Jones’ house.

Appellant was placed under arrest in the city jail at Forest. The sheriff requested and obtained an investigator, a Mr. John Coleman, from the Mississippi Highway Patrol to help question the appellant. A waiver of rights and a confession were obtained by Mr. Coleman, with appellant’s mark on both papers. Appellant cannot read nor write and can only sign his name with an “X”. The confession recites that on a former night the appellant had entered the Jones’ home by removing a screen and going through the window into Pequita’s room; that he became frightened and left. Several nights later, on Saturday, the appellant made the trespass which is complained of in this cause.

Appellant explains his absence from home that night by saying he went to Bennie Burkes’ house early that night to borrow some money and a cigarette; that he then returned home on the road that runs next to the Jones’ house and went to bed. Bennie Burkes testified that appellant did come to his house that night sometime after 9:00 p. m. and left a few minutes later. The crime was committed later the same night, shortly after 10:00 p. m.

Pequita Jones testified that she unquali-fiedly recognized and identified the appellant when she first saw him come from the house. Appellant testified that Pequita twice asked him, “Did you do it?” He further testified that his wife heard Pequi-ta both times she questioned him. The record discloses that appellant’s wife was seriously ill in the University Hospital at the time of the trial and was unable to talk.

Numerous errors are assigned by the appellant but we will consider only those which merit the attention of the Court in the disposition of this case.

Appellant first urges that the trial court erred in not granting a continuance upon his motion so that his wife might testify in his behalf that Pequita asked him, “Did you do it?” The rule as stated in Mississippi Code 1942 Annotated section 1520 (1956) is as follows: “A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.” The law of this state has long been that unless the trial judge abuses his discretion in denying a motion for continuance this Court will not overrule his decision. We do not find any merit in the contention that the trial judge abused his discretion in the case at bar.

Appellant next urges that reversible error was committed by the trial court in not granting appellant a continuance on his motion therefor which was made at the conclusion of his testimony and in not declaring a mistrial because of the court’s not granting his earlier motion for a continuance. This issue must resolve itself in the answer given for the first error assigned which has application here.

The third error assigned is the one which has caused this Court the greatest concern, namely, that the trial court committed reversible error in permitting into evidence the alleged confession and the alleged waiver of rights allegedly executed by the appellant over appellant’s objection. Whether or not this is error depends upon whether or not the waiver and confession were knowingly and voluntarily given. This is a question of law for determination by a court in the absence of a jury, and if the court properly holds that constitutional requirements were met, then the jury is entitled to consider the issue of whether or not the waiver and confession were freely and voluntarily executed. It is the opinion of this Court that the necessary warning was given as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state offered all officers present at the time of questioning which is sufficient to show that the defendant freely and voluntarily made a confession. Stevens v. State, 228 So.2d 888 (Miss. 1969).

The fourth error assigned by appellant is that the trial court erred in allowing Pequita Jones to testify that she had seen appellant peeping into her window just a few nights prior to the attempted assault. We hold that the occurrence Wednesday night and the occurrence Saturday night are within close proximity in both time and scheme and conclude that this testimony was admissible.

For the above reasons the judgment of the lower court is affirmed.

Affirmed.

GILLESPIE, C. J., and JONES, IN-ZER and SUGG, JJ., concur.

GILLESPIE, Chief Justice:

ON PETITION FOR REHEARING

On petition for rehearing the appellant again argues that the court erred in overruling his motion for a continuance. We have carefully reviewed this issue because the court will use all reasonable efforts to see that one accused of a crime has the benefit of all available witnesses, especially if the witness is the defendant’s wife.

In this case, counsel for the defendant was appointed on the 8th day of October 1971. No motion for a continuance was filed until ten days later, the day the case came on for trial. Counsel then filed an affidavit that the defendant intended to call his wife as a witness, and while she was not under subpoena, she was hospitalized at the University Hospital in Jackson, and would not be released during the October term, and that counsel had been unable to obtain a statement or affidavit from her because of her physical condition. The affidavit further stated that if she were in court she would contradict the State’s main witness in a material manner as set out in the affidavit. Although counsel stated in his affidavit that he could not obtain a statement or affidavit from defendant’s wife, he did not reveal the basis of his statement as to what her testimony would be. During the course of the trial, defendant’s counsel again renewed his motion without adding any additional information. After the defendant was convicted a motion for a new trial was filed, one of the grounds of which was that the court erred in not granting a continuance. No testimony was offered in support of his motion for a new trial. No explanation was made why an affidavit could not be obtained from defendant’s wife. No doctor’s certificate was offered that she could not communicate. The Court feels that in view of the frequency with which the question of denying a continuance is raised that attention should be called to the following statement from King v. State, 251 Miss. 161, 168 So.2d 637 (1964):

If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, make such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them tO' the court for examination; if, with all of his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding. (251 Miss, at 171, 168 So.2d at 641).

There is no compliance with the foregoing rule in the present case and no reason given excusing such compliance. We cannot under these circumstances say that the trial court abused its discretion in refusing to grant the continuance.

Petition for rehearing overruled.

All Justices concur..  