BEFORE DAN LEE, P.J., SULLIVAN AND ANDERSON, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
William Glen Pinson was convicted of rape by the Circuit Court of Lee County, Mississippi, and sentenced to a term of twenty-eight (28) years in the custody of the Mississippi Department of Corrections. He now appeals for relief assigning as error the following:
I. That the trial court erred in denying Pinson a continuance when it was brought to the attention of the court that a material witness was suddenly unavailable;
II. That the trial court erred in overruling Pinson's Motion for a Mistrial based on the grounds that Pinson was greatly prejudiced by the unavailability of Lukuna Hadley, a material witness for the defense;
III. That the trial court erred in sustaining the state's objection to the testimony of Lucille Gillespie, one of Pinson's key witnesses; and
IV. That the trial court erred in overruling Pinson's Motion for a New Trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence.
J. W., his wife, B. W., and his two children were neighbors of William Pinson. On the night of August 4, 1984, J. W. discovered the Pinson children unattended and took them to his own home. Later in the evening Pinson came to J. W.'s home and picked up his children and left. As soon as Pinson
left, J. W. also left to find the children's grandmother. B. W. and her two children were asleep in the home when J. W. left.
B. W. testified that she felt someone in bed with her but believed it to be J. W., her husband. She testified that when the man moved on top of her she felt the texture of his hair and smelled alcohol and cigarettes on his breath and realized it was not her husband. She then began to kick and fight and pushed him off the bed.
When J. W. arrived back at his home he heard his wife screaming and went back to the bedroom, turned the light on, and grabbed Pinson as he was running out of the room. According to J. W.'s version of the events Pinson told him that he thought he was in his own house and because B. W. was so upset J. W. let Pinson go and went to calm his wife.
Pinson however testified that he never entered J. W.'s home and never saw B. W. that night.
THAT THE TRIAL COURT ERRED IN DENYING PINSON A CONTINUANCE WHEN IT WAS BROUGHT TO THE ATTENTION OF THE COURT THAT A MATERIAL. WITNESS WAS SUDDENLY UNAVAILABLE.
THAT THE TRIAL COURT ERRED IN OVERRULING PINSON'S MOTION FOR A MISTRIAL BASED ON THE GROUNDS THAT PINSON WAS GREATLY PREJUDICED BY THE UNAVAILABILITY OF LUKUNA HADLEY, A MATERIAL WITNESS FOR THE DEFENSE.
Pinson moved for a continuance prior to his trial date due to the absence of his daughter, Lukuna Hadley. Pinson had taken Lukuna and his other children to visit with their mother and she subsequently disappeared with the children. The trial judge ordered an instanter subpoena for both Lukuna and her mother but refused to continue the case.
At the close of the State's case Pinson renewed his motion on the grounds that Lukuna was still absent and that the defense would be greatly hampered if they were unable to examine Lukuna as a witness. ...