Dyer v. State, 48038

• Decision Date: 30 September 1974
• Docket Number: No. 48038,48038
• Parties: Frankie DYER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 788

300 So.2d 788

Frankie DYER v. STATE of Mississippi.

No. 48038.

Supreme Court of Mississippi.

Sept. 30, 1974.

William P. Dodson, Oxford, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

Frankie Dyer was indicted for the illegal sale of a controlled substance. He was tried and convicted in the Circuit Court of Alcorn County and was sentenced to serve a term of six years in the penitentiary and to pay a fine of $1,000. However, payment of the fine and two years of the prison term were suspended 'pending good behavior.' From his conviction and sentence he has appealed to this Court.

A number of grounds are assigned and argued as requiring reversal. Each of these has been examined and considered carefully, in the light of the record, and are found to be without merit. Only two require discussion.

On September 6, 1973, cases appearing on the docket which were triable at the October, 1973 term, were set for trial on a day certain. This case was set for trial October 8, 1973. It was called on that date and appellant's motion alleging discrimination in the selection of jurors was heard and was properly overruled.

On September 26, 1973, appellant filed a 'motion to produce.' Among other things demanded, the motion sought a 'sample' of the controlled substance alleged to have been sold by appellant.

This motion, so far as the record discloses, was not brought to the attention of the trial judge until October 9, 1973. It was presented at that time, prior to the beginning of the trial proper, which commenced on that date. The request for a sample of the substance was sustained and the sample was supplied. The lateness of this action is assigned as error, it being argued now that the trial court's action came too late to permit an independent analysis.

A trial judge is not charged with knowledge of every paper filed with the court clerk. It is not the duty of the judge, ex mero motu, to search out and bring up such matters. On the other hand, the affirmative duty rests upon a party filing a motion to follow up this action by bringing it to the attention of the judge and by requesting a hearing upon it. Here, the motion to produce was filed on September 26, 1973, but was not brought to the attention of the judge until October 9, 1973, just before the trial began. This delay, in the absence of any showing of diligence on the part of appellant in bringing the motion to the attention of the trial judge, or of any refusal on his part to hear it, must be charged to appellant.

There is some evidence that such an analysis requires about twenty minutes and it is not shown that any attempt was made by appellant to obtain one.

Be that as it may, on October 12, 1973, appellant filed a motion for a new trial. Among other grounds assigned was that the order to produce came too late to be of any practical value. However, no proof whatever was offered in support of the motion. In order to prevail on this ground it would have been necessary that appellant show...