Jackson v. State , 104 Ala. 1 ( 1893 )

BRICKELL, C. J.

The motion or application of the appellants for a joint trial with their co-defendant Moore, who was not in the custody of the court, but was confined in the penitentiary, in its real essence, whatever form it was made to assume, was an application for a continuance, and could very properly now be disposed of as such, without further remark, than that the grant or refusal of a continuance rests in the irrevisable discretion of the primary court. But it seems to have been supposed, that there is an inherent right in a defendant jointly indicted with others, to demand a joint trial, and to compel the State to award it. We have not been furnished with any argument, or any authority in support of the proposition.

At common law, when several were indicted jointly for the. commission of a criminal offense, it was matter of discretion in the court whether they should be tried jointly or separately, and the exercise of the discretion was not revisable on error. — Hawkins v. State, 9 Ala. 137; Thompson v. State, 25 Ala. 41; Wade v. State, 40 Ala. 74; Parmer v. State, 41 Ala. 416. Most usually, in practice, an application for a separate trial proceeded from a defendant, but such trial could be ordered on the application of the State. — 1 Bish. Cr. Pr., § 1018. Whether the trial should be joint or several, rested largely in the election of the State, and, without cogent reasons, the courts were reluctant to interfere with or control the election. — U. S. v. Marchant, 12 Wheat. 480; U. S. v. Wilson, 1 Baldwin, (Cir. Ct.) 85. The statute, (Or. Code, § 4451), now confers on a defendant the unqualified right to elect a separate trial. But the statute is incapable of any just construction which would confer upon him the right to elect a joint trial. The purpose was to confer the right to a separate trial if it was elected, leaving the court to determine, if the election was not made, whether the trial should be joint or several. - People v. Stockham, 1 Parker’s Cr. Rep. 424. When two or more are jointly indicted, and all are not in custody, it is in the discretion of the.coürt to proceed to the trial of such as are in custody, and whether they be convicted or acquitted, the other, when apprehended, maybe put upon trial. — 1 Arch. Cr. Pr. & PI. (Pomeroy’s Ed.), 303. The circuit court did not err in proceeding to the trial of the appellants who were in custody, in the absence of the defendant who was confined in the penitentiary.

We have carefully examined the affidavits which were submitted in support of the application for a change of venue. A change of venue is granted only when it is clearly shown that a fair and impartial trial may not be had in the county in which the indictment is found.— Cr. Code, § 4485. Pacts and circumstances rendering such a trial improbable must appear. The mere belief of the party applying, or of the witnesses he is enabled to produce, that such trial can not be had, will not suffice. 1 Bish. Cr. Pr., § 71; Salm v. State, 89 Ala. 56. The affidavits consist largely in the mere expression of the opinion of the parties making them, and no- distinct, tangible facts are stated, which, in our opinion, would have justified the circuit court in granting the application.

The judgment is affirmed.