Andy v. State , 87 Ala. 23 ( 1888 )

CLOPTON, J.

On the day set for the trial, but before a jury was organized, appellant, who was jointly indicted with others, moved for a severance as to himself. Section 4451 of Code of 1886 declares: “When two or more defendants are jointly indicted; they may be tried either jointly or separately, as either may elect.” Under the statute, as it stood prior to this enactment, and also in the absence of statutory regulations, it was held, that the allowance of a separate trial was discretionary with the court. — Code, 1876, § 4892; Hawkins v. State, 9 Ala. 137; Wade v. State, 40 Ala. 74. The purpose and operation of section 4451 are to abrogate the former rule, and to entitle either defendant to a separate trial as matter of right. Under the present statute, when two or more persons are jointly indicted, and either so elects in proper time, the allowance of a separate trial is imperative.

Reversed and remanded.

Note.' — See Rule of Practice, since adopted, regulating severances. — 86 Ala. vm.