Three persons were jointly indicted for violating the Sabbath. On being arraigned, they pleaded not guilty, and demanded to be tried.separately, which the court refused. The cause was tried by the court without a jury, and the defendants were found guilty and fines assessed against them, for which judgment was rendered. There was ño motion for a new trial. The appellants assign as error, first, the refusal to grant separate' trials; and, second, in finding them guilty and assessing fines against them.
If the refusal to grant separate trials was an error of law occurring at the trial, there should have been a motion for a new trial, in order properly to present the question here. Lures v. Botte, 26 Ind. 343. ■ New trials in criminal cases may be granted for the causes mentioned in section 142, 2 G. & H. 423. The refusal to grant separate trials is not among the causes here enumerated, and hence we think the question may be saved by bill of exceptions, as was done in this case, without a motion for a new trial. It is expressly provided by statute, that “when two or more defendants are indicted jointly, any defendant requiring it, must be tided separately.” 2 G. & H. 416, sec. 105. This provision seems to us to be decisive of the question.
The judgment is reversed, and the cause remanded.