
    Samuel Parry, Jr., v. The State.
    See this case as to setting aside an entry of nolle prosequi.
    
    Appeal from Panola. Tried below before Hon. C. A. Frazer.
    This is an indictment against the appellants, Samuel Parry, Jr., and one Samuel Parry, Senr., for an assault and battery upon the person of Reuben Thompson. The indictment was filed December 16th, 1854. At the Spring Term, 1855, the cause was continued by the State. At the December Term, 1855, the cause came on to be tried, and the defendants made their appearance, and, on motion, of the District Attorney, a nolle prosequi was entered as to the defendant, Samuel Parry, Jr., and the other defendant was put upon his trial, upon a plea of guilty a verdict and judgment was rendered against said Samuel Parry, Senr. At the same Term of said Court, said Samuel Parry, Senr., applied to the Court for a new trial, which was granted, and in the order for a new trial the Court adjudged that the nolle prosequi entered as to the defendant, Samuel Parry, Jr., be set aside, and the indictment as to him ■be reinstated. At Spring Term, 1856, the cause was continued by the State. At Spring Term, 1857, the cause was continued on the affidavit of Samuel Parry, Senr, At Fall Term, 1857, the parties appeared in Court, and after severing, the defendant, Samuel Parry, Jr., was put upon his trial, and there was a verdict against him by the jury, whereupon he moved the Court to arrest the judgment thereon, upon the ground that a nolle prosequi as to him had been entered at a former Term, and that the setting it aside was error. The motion was overruled.
    
      W. B. Poag, for appellant.
    
      Attorney General, for the State.
   Wheeler, J.

It is said by Hr. Wharton that, at Common Law, a noUe prosequi may be at any time retracted, and is not only no bar to a subsequent prosecution on another indict- ' ment, but may be so far cancelled as to require proceedings on the original bill. (Whart. Am. Cr. L. 514.) We see nothing to prevent the defendant from consenting that the entry be set aside during the Term; as the record abundantly shows he did. The judgment is affirmed.

Judgment affirmed.  