Middleton v. State ( 1978 )

BURKE, Justice,

concurring.

I fail to understand why it is either necessary or proper for this court to consider whether the failure to give an accomplice instruction was plain error. The whole point of appellants’ argument is that they could not request such an instruction without risking substantial prejudice to themselves, so long as they were to be tried together. Neither one of them contends that the instruction should have been given in the absence of separate trials. Thus, the issue is not whether an accomplice instruction should have been given, but simply whether it was reversible error to deny the motions for severance.

Otherwise, I concur.