BEFORE WALKER, HAWKINS AND DAN LEE
DAN LEE, JUSTICE, FOR THE COURT:
M. A. Strickland appeals his conviction in the Circuit Court of Yazoo County for the crime of sale of over one kilogram of marijuana. The jury found Strickland guilty, and he was sentenced to serve 30 years in the custody of the Department of Corrections and to pay a fine of $75,000.
Strickland has appealed, making the following six assignments of error:
I. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A CONTINUANCE UNDER MISS. CODE ANN. 11-1-9 (Supp. 1982).
II. THE TRIAL COURT ERRED BY ITS INTERROGATION AND VOIR DIRE OF THE JURY PANEL IN CHAMBERS, THEREBY INFLUENCING THE JURY AGAINST THE DEFENDANT, AND FURTHER ERRED BY FAILING TO GRANT DEFENDANT'S MOTION TO QUASH THE PANEL.
III. THE TRIAL COURT ERRED IN ALLOWING A WITNESS FOR THE STATE TO TESTIFY WHEN HIS NAME HAD NOT BEEN FURNISHED TO DEFENSE COUNSEL PRIOR TO TRIAL AS HAD BEEN REQUIRED BY A DISCOVERY ORDER.
IV. THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED CONTROLLED SUBSTANCE INTO EVIDENCE OVER OBJECTION OF THE DEFENDANT THAT A PROPER CHAIN OF CUSTODY HAD NOT BEEN SHOWN.
V. THE TRIAL COURT ERRED BY ACCEPTING WITNESS AS EXPERT IN MARIJUANA IDENTIFICATION OVER DEFENDANT'S OBJECTION.
VI. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL OR FAILING TO DECLARE A MISTRIAL BECAUSE OF IMPROPER SUMMATION BY THE STATE.
We reverse on the second assignment of error.
Strickland was indicted on January 12, 1983, and his trial was continued to the next term of court. On April 1, 1983, Strickland employed two additional attorneys to represent him. At that time, he moved for a continuance because one of his attorneys was a member of the state legislature, which was currently in session. The court overruled this motion. Later motions to set aside the order denying a continuance and to renew his motion for a continuance were also overruled.
Strickland's first assignment of error deals with his request for a continuance pursuant to Miss. Code Ann. 11-1-9 (Supp. 1984), which states:
In any cause now pending or which shall hereafter be pending before any court of this state or before any administrative board, agency or commission of this state or before any court or administrative agency or any county or municipality of this state in which an application for continuance is properly made, predicated upon the ground that the counsel for the party making said application is a member of the Mississippi legislature and if said application is made at a time when the legislature is in session, either regular or extraordinary, or if said legislature will be in session at the time that said cause would be triable, then the continuance shall be granted in all cases. [emphasis added].
We construe this statute as procedurally mandating a continuance which is requested because counsel for a party is a member of the legislature, if no constitutional, due process or other countervailing rights are involved. While we do not reverse on this issue, we wish to point out to the judges and ...