People v. McCalla

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. The defendants, were jointly indicted, and tried, in the Court below, for the crime of murder, and were convicted, the one of murder, and the other of manslaughter.

[303]The only error assigned, is the refusal of the Court to exclude from the panel a juror, who was challenged peremptorily by one of the defendants, the other expressly refusing to join in the challenge.

The three hundred and twenty-seventh section of the act to regulate proceedings in criminal cases, provides that “ when several defendants are tried together, they are not allowed to sever their challenges, but must join therein.” This section would appear to be sufficiently explicit, and, indeed, it would be difficult to find language to express more clearly the intention of the Legislature.

It is contended by counsel that it was intended to apply only to challenges for cause, and that each defendant, in a criminal case, is entitled to twenty peremptory challenges. In support of this position no authority is adduced, and the reverse of it would seem to be true. Challenges for cause may be made by any party, and when a fact establishing the incompetence of a juror is brought to the knowledge of the Court, it becomes its duty to exclude him, even against the wishes of all the parties.

On the other hand, peremptory challenges are interposed at the option of the defence, or the prosecution, and each defendant has a right to insist that the limit allowed to the prosecution is not exeeded, and that he shall not be deprived of the judgment of a competent and impartial juror, by the mere whim or caprice of his co-defendant.

Defendants in capital cases are allowed twenty peremptory challenges, (ib., § 343,) and it is at the option of each defendant, in a joint-indictment, to receive a separate trial (§ 367). If he chooses to waive this. right, and be tried jointly with another, his authority to control the conduct of the defence is of course 'shared with his co-defendant.

It follows that there is no error in the ruling of the Court below.

The judgment is affirmed, and the Court below directed to appoint a day for carrying its sentence into execution.