#### William Reed v. State of Nebraska.

Filed February 11, 1913.

No. 17,850.

Criminal Law: Trial: Severance. Under section 465 of the criminal code, one jointly indicted with others for a felony is entitled to a separate trial as a matter of right, if the request for a separate trial is made in due season. *Mete v. State,*46 Neb. 547, distinguished.

*164Error to the district court for Nemaha county: Leander M. Pemberton, Judge.

*Reversed.*

*Lambert & McCarty,*for plaintiff in error.

*Grant G. Martin, Attorney General,*and *Frank E. Edgerton, contra.*

Letton, J.

The plaintiff in error was jointly indicted with three other persons upon the charge of having committed a felonious assault with intent to inflict great bodily injury upon one Goings. Each of the defendants filed a separate motion asking for a separate trial. These motions were overruled and exceptions taken. Trial was had, and the jury returned a verdict finding the plaintiff in error guilty of assault and battery, and finding the other defendants guilty of felonious assault as charged. No bill of exceptions has been preserved. The only assignment of error Ave can consider, as the record stands, is that the court erred in overruling the motion for a separate trial.

At common law a defendant could not as a matter of right demand to be tried separately, and a severance at the request of either party was a matter of discretion. 1 Bishop, Criminal Procedure (3d ed.) sec. 1018. Section 465 of the criminal'code provides: “When two or more persons are indicted for a felony, each person so indicted shall, on application to the court for that purpose, be separately tried.” Plaintiff in error insists that the provisions of this statute are mandatory. The state contends that the motion in this case, being made immediately before the trial, was made too late, and, further, that the error, if any, was not prejudicial, since the accused was only convicted of a misdemeanor; that one guilty of a misdemeanor is not entitled to a separate trial as a matter of law, and that he was really tried for a misdemeanor.

The objection that plaintiff in error1 did not apply for a separate trial in time AAre think is not justified by the *165record. The information wag filed in the district court on May 27,1912. On May 29 the case was set for trial on the morning of the 31st, and on that day the motion was made and overruled before the selection of a jury was begun.

The accused was charged with a felony, and when so charged the statute clearly preserves to him the right to be tried separately. *Johnson v. State,*14 Ind. 574; *Trisler v. State,*39 Ind. 473; *Cain v. State,*44 Ind. 435; *Greer v. State,*54 Miss. 378. In the case of *Metis v. State,*46 Neb. 547, the defendant complained of a severance, but did not do so until after a jury had been selected and sworn. It was held that this was too late, which was undoubtedly a correct decision. Norval, O. J., however, added the statement (probably true as to the state, but, as we are of opinion, incorrect as to the defendant) that the severance is “in the discretion of the court.” This question was not in the case, and must be considered as mere dictum. We hold, therefore, that, when the demand is made by the accused in time, the court has no discretion. This right he may waive by failure to make the request in proper season. In Alabama the code fixes the time at or before which the request must be made. In Washington, where there is no statutory provision as to time, the court say: “The right to a separate trial is a valuable one, and this section of the penal code confers it upon a defendant. It does not specify when the demand shall be deemed waived. We think this right to a separate trial belongs to the defendant, and he may avail himself of the right at the time the cause is assigned for trial. A severance of trial afterwards is in the discretion of the court, until the jury is sworn to try the cause, subsequently to which time a several trial cannot be granted.” *State v. Mason,*19 Wash. 94. There was a dissent on this proposition. No other court taking this view has been called to our attention. There being no statute or rule of court setting a limit of time before the trial for the defendant to elect whether he will be tried separately, we *166think the court ought not to hold that the rig'ht was waived by failing to exercise it until the day of trial.

Was the error without prejudice? The evidence not being before us, it is impossible to tell whether the defendant’s conviction was not influenced by his association with the three defendants who were each found guilty of a felony.

The motion for a separate trial should have been sustained, and the judgment of the district court is therefore

Reversed.