p. 377Headnote
On an indictment against two for felony, and a separate trial of one of the defendants before the arraignment of the other on the motion of the proseen, tor, the defendant not arraigned is not a competent witness for the other, notwithstanding the statute securing in such cases a separate trial.-’Á joint indictment for obtaining money by false pretences having been found against the prisoner and one Phettiplace, the district attorney of Chenango, previous to the arraignment of Phettiplace, elected to try Williams separately, and accordingly proceeded to his trial; it not appearing that any objection to such course was made by the prisoner. After the prosecutor rested, Phettiplace was called as a witness for the prisoner, who being objected to by the district attorney as incompetent, was excluded by the court. The prisoner having excepted to the decision, the indictment and bill of exceptions were removed into this court. The case was submitted on written arguments.
C. A. Thorp, for the prisoner.
J. Clapp, (district attorney of Chenango,) for the people.
By the Court,
The competency of the witness is the only point made in the case.
By the statute, 2 R. S. 735, § 20, when two or more defendants shall be jointly indicted for felony, any one defendant requiring it shall be tried separately; in other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court. Before the statute, this discretion existed in all cases where the right of peremptory challenge was out of question. 7 Cowen, 188. The statute
p. 378secures a right to a defendant indicted upon a charge of pe]ony? (jj¿ not before exist: that is, a separate trial where he is not entitled to a peremptory challenge; the language is purposely broad, to settle a doubt suggested of the prisoner’s right, even where the peremptory challenge belonged to him. See Note of Revisers to the section. It belongs to him where the offence is capital, or is punishable with imprisonment in the stale prison for ten years or any longer term. 2 R. S. 734, § 9. The act abridges the power of the court in cases where the prisoner insists upon a sepa- . rate trial—it must be granted—but the power' before possessed to grant it is not taken away. The court may direct a- separate trial as before, without consulting him. The prisoner may now ask it as a right, and that is all the change made in this respect.
In this case therefore, even aside from the fact that there was no objection to the measure, none could have been effectual if interposed, conceding the offence to be a felony, as no doubt it is within the definition of the statute. 2 R. S-702,.§ 30, and 677, § 53. If the defendant was rightfully tried alone, then the case of The People v. Bill, 10 Johns. R. 95, is decisive against the competency of his co-defendant. 1 Phil. Ev. 62,