Opinion
No. 40394.
February 18, 1957.
1. Witnesses — discharge of witness subpoenaed in case.
Under statute providing that every witness subpoenaed in a case shall attend until discharged by court or party at whose instance he was subpoenaed, district attorney had authority to excuse state witness when State rested its case, and Trial Court did not err in permitting him to do so. Sec. 1889, Code 1942.
Headnote as approved by Arrington, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHARY, Judge.
Robert E. Arrington, Hattiesburg, for appellant.
I. The Court erred in permitting the District Attorney to excuse a state witness when the State rested its case. Because said witness had been discharged by the District Attorney during the course of trial the said witness was not available to testify in behalf of the defendant.
II. Lillie Mae Nicholson is entitled to have all of the evidence which is known by competent witnesses to be submitted to the trial jury for deliberation.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The only assignment of error argued on this appeal is that the Court erred in permitting the District Attorney to excuse a State's witness when the State rested its case. It is seen on Page 103 of the record that the appellant proposed to rest her case at this point unless one Joe Keys was in the courtroom. It was shown that a subpoena had been issued only a few minutes prior thereto at the instance of the appellant for the said Joe Keys, but that the said Joe Keys, up until a few hours before, had been present in the witness room of the State's witnesses on subpoena of the State, but was never called by the State as a witness and had been released by the District Attorney. The District Attorney had the authority under Section 1889, Code 1942 to release the said witness unless his action was in violation of an order of the Court and it is not made to appear by the record that the Court was even aware of Joe Keys' presence in the witness room and there is no showing on the part of appellant that she had made any request for him until after he was released by the District Attorney. The appellant makes no showing as to what this witness would have testified to or that his testimony would have in any manner aided her defense. We simply point out to the Court that the appellant makes no showing that she has been prejudiced in any manner by the exercise of this statutory authority on the part of the District Attorney. Sec. 1889, Code 1942.
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 murder. 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.
(Hn 1) 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, C.J., and Hall, Kyle and Gillespie, JJ., concur.