#### THE STATE *vs.*JOSEPH BOGUE & AL.

Where several persons are indicted for a trespass, it is not a matter of right for any of the defendants to insist, on the trial, that the jury should he required to pass upon the guilt or innocence of any of the others, before they pass upon the whole. This is a matter of discretion in the presiding Judge —a discretion rarely, if ever, used, except in cases, where there is no evidence against a part of the defendants, or where the Court is satisfied, that persons are made defendants, to prevent their being examined in the case.

From the exercise of a discretionary power in the Court, no appeal lies.

Appeal from the Superior Court of Law of Perquimans County, at the Spring Term 1849, his Honor Judge Manly presiding.

The defendants were indicted for a forcible trespass in entering the yard of the prosecutor, and there shooting his dog. The prosecutor and his family, and a man by the name of Crothers, were present, and the latter was a witness for the State and examined before the jury. It was proved, that the three first named defendants came up first, and together entered the yard, and the three last came up together, soon after the entry was made, and stood while the dog was killed — one of them being the son of the first named defendant. Upon the closing of its *361case by the State, the defendants’ counsel moved the Court to direct the jury to pass upon the eases of the last named defendants, in order that the others might have the benefit of their testimony.

This was refused by the Court, and the case, being submitted to the jury as to all the defendants, they returned a verdict of guilty, as to the two first, and not guilty, as to the others. Judgment and appeal.

*Attorney General,*for the State.

No counsel for the defendants.

Nash, J.

The error complained of, was in the refusal»

-of the presiding Judge, to direct the jury to pass upon the case as required. The separation of the cases, after the jury was charged, was not a matter of right, as claimed by the defendants, but entirely one of discretion in the Judge — a discretion rarely, if ever, used, except in cases where there is no evidence against a part of the defendants, or where the Court is satisfied, that persons are made defendants to prevent their being examined in the case. An instance of this is, where the prosecutor includes in the prosecution unnecessarily all the persons, who were present, thereby cutting off from the accused every chance of bringing the truth of the transaction fully before the Court and jury. But even in that case, the Court will move with great caution in allowing the favor, and only for the purposes of justice. A prosecutor is not compelled to leave out any person he may honestly believe to be a party in a joint trespass, in order that he may be used by the other defendants; and, on the other hand, if he give no evidence against any particular person, so included, the Court may, in its *discretion,*direct the jury to 'pass upon his case ; but even then, it is a matter of sound discretion. *Tidd’s Pr.*861, *Peake’s Ev. 5lh edition,*148, and 1st *Phil, Ev. 6th edition,*68. It has been re*362peatedly ruled by this Court, that with judgments of the Superior Court, resting on discretion, we cannot interfere. But, in this case, we think there was not only some evidence against the defendants, in whose favor the motion was made, but sti’ong evidence.

Bin CvaiAivi. Judgment affirmed.