
    Sallie Thompson v. The State.
    On the trial of a criminal case, the only witness in behalf of the State testified without being sworn. After the argument of the case had closed, defendant’s counsel asked the court to instruct the j ury that they should acquit, as there was no evidence before them. The court, refused the instruction, and allowed the witness to be recalled and sworn, and to testify again. Held, that the court erred both in refusing the instruction asked by defendant, and in permitting the witness to testify after the argument of the case had closed.
    Appeal from Caldwell. Tried below before the Hon. Henry Haney.
    There is no occasion for a statement of the facts.
    
      L. J. Storey, for appellant.
    
      Wm. Alexander, Attorney-General, for the State.
   Walker, J.

The principal question raised upon this record is this : the State had but one witness ; he was put upon the stand and gave his evidence without being sworn; counsel addressed the jury, and the argument was closed. The defendant’s counsel then moved the, court to instruct the jury that they should acquit, as there was no evidence before them. The court overruled this motion, and allowed the witness to be sworn. He then detailed his evidence with some variation, and the jury convicted the defendant. A motion .was made for a new trial, and was overruled by the court. There was error in refusing the instruction asked, and in admitting the witness to be sworn, to testify after the argument was closed. Had a new trial been granted, this irregularity might have been cured, and it was error to overrule the motion for a new trial.

The judgment of the District Court is reversed, and the cause remanded.

Reversed and remanded.  