
    Herrington v. Flanders, sheriff.
    Submitted June 16,
    Decided July 17, 1902.
    Certiorari. Before Judge Evans. Emanuel superior court. April 26, 1902.
    
      Alfred Herrington and F. H. Saffold, for plaintiff in error.
   Pish, J.

1. Under the Penal Code, § 1079, it is manifestly unlawful to charge the accused in a criminal case, upon his conviction, with “ the costs of any witness of the State, unless such witness was subpoenaed, sworn, and examined on the trial.” The prohibition in that section against charging the accused, except as therein indicated, with the costs of “more than two witnesses to the same point” relates, of course, only to witnesses who have actually been “subpoenaed, sworn, and examined.”

2. Under the law above announced, the superior court erred in not sustaining the certiorari.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.  