People v. Williams

19 Wend. 377 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

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 secures 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,