
    Nicholson v. State
    No. 40394
    February 18, 1957
    92 So. 2d 654
    
      Robert E. Arrington, Hattiesburg, for appellant.
    
      
      J. R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
   Arrington, J.

The appellant, Lillie Mae Nicholson, was .indicted, tried and convicted in the Circuit Court of Forrest County, Mississippi, for assault and battery with intent to kill and mnrder. She was sentenced to a term of five years in the penitentiary, from which judgment she appeals.

•The only assignment of error argued is that the court erred in permitting the district attorney to excuse a State witness when the State rested its case.

Section 1889, Mississippi Code of 1942, provides : ‘ ‘ Every witness subpoenaed in any case, civil or criminal, shall attend, from day to day, and from term to term without further notice, until discharged by the court or by the party at whose instance he was subpoenaed; . . . .”

The record shows that the witness Joe Keys had been subpoenaed by the State as a witness in the instant case and that his name also appeared on the back of the indictment. According to the testimony of the district attorney, after conferring with Joe Keys, he asked him whether or not he had been subpoenaed by the defendant. His answer was that he had not; that he then told him the State would not use him as a witness and as far as he was concerned he could go. Under the statute, the district attorney had the authority to release the witness. The record further shows that the court knew nothing about the matter until it was called to his attention by counsel for appellant. Counsel for appellant did not request subpoena for the witness Joe Keys until after the State rested its case. Cf. Bryant v. State, 172 Miss. 210, 157 So. 346.

Affirmed.

McGehee, G. J., and Roll, Kyle and Gillespie,, JJ., concur.  