
    Reed v. State.
    
    (Division B.
    Oct. 11, 1926.)
    [109 So. 715.
    No. 26002.]
    1. MOTIONS.
    A motion is at issue without further pleading, and the movant must, to sustain his motion, introduce proof on such issue.
    
      2. Crimiwal Law.
    A person accused of crime other than a capital offense is not entitled to have the court appoint him counsel, but must employ counsel or go without representation.
    Appeal from circuit court of Jones county.
    HoN. R. S. Hall, Judge.
    Dennis Reed was convicted of stealing an automobile, and lie appeals.
    Affirmed.
    
      Bush & Boyd, for appellant.
    Under the law this case should be reversed because appellant should have been told by the court that if he had no counsel and could not procure counsel, the court would appoint counsel for him. This was not done and for this reason a motion for a new trial should have been sustained. It may be argued that igporan.ee is no plea in law, but we submit that it is often a palliating; circumstance and should at times be observed by any court.
    In the motion to set aside the verdict, it is shown that appellant was arrested on a charge of larceny and was taken into custody and tried before he could get in touch with his people or try to arrange for counsel in his necessary defense.
    
      J. A. Lauderdale, Assistant Attorney-G-eneral, for the state.
    It appears from the record that appellant had from March 27 to April 6 in which to secure counsel and prepare his defense. There is absolutely nothing in the record to show that appellant was unable to secure counsel himself. There is nothing to show whether or not he consulted with friends and relatives before the trial or after the trial; and there is nothing to show that they could not secure counsel for him. In other words, there is no proof supporting the allegations 'contained in the first ground of the motion for a new trial; and even if there were proof, it could not prevail here.
    The second ground of the motion is not well taken for the reason that neither the Constitution nor the statutes of the state of Mississippi require or allow the court to appoint counsel for a defendant charged with a crime where the punishment is less than death. Section 26 of the Constitution does guarantee to a defendant the right to be heard by himself, or counsel, or both, but this section does not require the court to appoint counsel for him.
    Section 1239, Hemingway’s Code, provides that “Any person in jail, charged with a capital crime, or who is indicted for such crime, who is unable to employ counsel, shall, at his request, be allowed counsel not exceeding two, to be chosen by the judge in vacation, or by the court.”
    The appellant in the court below was not charged with a capital crime and, therefore, the court had no right to appoint counsel for him. ■ The record does not show that he was unable to secure counsel before the trial.
    
      
      Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 822, n. 35; p. 1223, n. 68; Motions, 28Cyc. p. 15, n. 24.
    
   Ethkidge, J.,

delivered the opinion of the court.

The appellant was indicted and tried for stealing an automobile, and was placed upon trial and convicted, not being represented at the time by counsel. After the jury had rendered a verdict of conviction, a motion was filed by attorneys employed after the conviction to set aside the judgment and grant a new trial. The motion was made on the following grounds:

“That the defendant was arrested on a charge of grand larceny, was taken into custody and tried before he could get in touch with his people and arrange his necessary defense. That at the time of his trial he was not apprised of the fact that under the law of the state of Mississippi he could ask the court to appoint an attorney to represent Mm, and while ignorance is no plea in law it is oftentimes a palliating’ circumstance in one’s favor. ’ ’

Tlie record does not show any proof offered on this motion. Motions are at issue without formal pleading, and it devolves upon the movant to support his motion by proof. There is therefore no showing that any undue advantage was taken of the defendant in placing him upon trial, nor any objection to going] to trial at the time he was put upon trial.

It is not the law that the state must furnish counsel to persons charged with crime, except in capital cases. In all other eases the defendant must procure counsel or act for himself in his trial. The court has no power to employ counsel to be furnished him.

The judgment of the court below is affirmed.

Affirmed.  