delivered the opinion of the court.

During the progress of the trial below, the court ordered a witness, who had testified on behalf of the accused, into the custody of the sheriff, to await an investigation by the grand jury of a charge of perjury then by the witness supposed to have been committed, and this action was had in the presence of the jury. But the court soon afterwards, and before the evidence had all been offered, in a spirit of judicial fairness which cannot be too highly commended, stated that the action of the court in ordering the witness into custody, under the circumstances above detailed, was error, and reversible error. *505The court further announced to counsel for the defendant that he would discharge the j nry, and cause another to be impaneled, or, if counsel desired, the error might be waived and the trial proceed before the jury then in the box. Thereupon, the defendant waived the point on the error committed, and declared that he preferred being tried by the jury then hearing the case, and the case was accordingly proceeded with.

Some time afterwards, the counsel for the accused moved the court for permission to withdraw the former waiver, and gave as the ground for the motion the unwillingness of the prisoner that the waiver should stand. The court denied the motion, and this is assigned for error.

In cases of misdemeanors, one accused may waive a right which in felonies, and especially those of the highest grade, the policy of the law will not permit him to waive, and in refusing to permit the prisoner to waive and afterwards to exercise the right not to waive, the learned and just court was clearly right. The conduct of the judge of the lower court was open, manly and most honorable.

Affirmed.