Jacoby v. State, 26767.

• Decision Date: 09 June 1937
• Docket Number: No. 26767.,26767.
• Citation: 212 Ind. 465,8 N.E.2d 978
• Parties: JACOBY et al. v. STATE.
• Court: Indiana Supreme Court

212 Ind. 465

8 N.E.2d 978

JACOBY et al.

v.STATE.

No. 26767.

Supreme Court of Indiana.

June 9, 1937.

Forest Jacoby and others were convicted of robbery, and they appeal.

Affirmed.Appeal from Criminal Court, Marion County; Frank P. Baker, judge.

Karrer, Peden & Baker, of Indianapolis, for appellants.

Omer Stokes Jackson, Atty. Gen., and Walter O. Lewis and Glen L. Steckley, Deputy Attys. Gen., for the State.

FANSLER, Chief Justice.

Appellants were jointly charged by indictment, tried, and convicted of robbery.

Error is assigned upon the overruling of their separate motions for a separate trial, and their motion to require the prosecutor to elect which of the defendants would first be tried, and upon the overruling of their separate motions for a new trial.

Prior to 1935, defendants jointly charged with a felony were entitled to separate trials. In 1935 a statute was enacted providing for a joint trial unless the court in its discretion orders a separate trial. Acts of 1935, c. 92, p. 286, section 9-1804, Burns' Supp.1936, section 2284, Baldwin's Ind.St. Service 1935.

Appellants contend that the denial of a separate trial invades their constitutional rights. Article 1, section 13, of the Constitution of Indiana provides: ‘In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury.’ It is not contended that the trial court abused its discretion, and the only contention is that, by the denial of a separate trial, the defendants were denied the right to peremptory challenge ten prospective jurors each. But there is no constitutional right to peremptory challenges. By statute, and the decisions of this court, the right to challenge for cause is broad enough to fully protect a defendant's right to be tried by an impartial jury. Klink v. State (1932) 203 Ind. 647, 179 N.E. 549, 79 A.L.R. 272. ‘A joint offense is only one offense committed by two or more persons jointly; and, in the absence of statutory authorization to the contrary, no court can be required to sever defenses.’ State ex rel. Flaherty v. Ermston (Ind.Sup.1935) 197 N.E. 908, 911.

Error is predicated upon the overruling of appellants' objection to the testimony of a witness after she had testified that she could not identify the defendants. The character of the testimony of the witness thereafter given is not set out in the brief. It may have been competent and pertinent to the issue, even though the witness could not identify the defendants.

There is objection to the admissibility of other evidence, because it involved ‘matters occurring twenty days after the offense charged in...