Opinion
(January Term, 1878.)
Practice — New Indictment — Several Defendants and Separate Defenses. Discretionary Power of Court.
1. In the prosecution of criminal actions, the solicitor is not restricted to the first bill of indictment found, but may at any time before entering upon the trial send another bill to the grand jury and require the defendants to answer that.
2. On the trial of a criminal action, where there are two or more defendants, and their defenses are separate and antagonistic, the court must regulate the order and manner in which the defenses are to be presented, and the exercise of such discretion is not reviewable in this Court.
AFFRAY, tried at Spring Term, 1877, of GUILFORD, before Cox, J.
The defendants, M. C. Dixon and J. B. Gretter, were indicted for an affray and put upon trial on a new bill substituted for that upon which they had been arrested, and differing from the first only in the order in which their names appeared on the bill. When the evidence offered for the State was concluded, the court directed the defendant Dixon to introduce and examine his witnesses, and then the other defendant to do the same. Some of the evidence offered by the defendant Gretter tended to the inculpation of Dixon, and the latter was offered an opportunity to meet and rebut it, which was declined. The jury found both defendants guilty and the court pronounced judgment, from which Dixon appealed.
Attorney-General for the State.
J. A. Gilmer and J. T. Morehead for defendant.
We find nothing in the conduct of the cause of which the appellant can rightfully complain. (559) The solicitor is not restricted to the first bill, but may at any time before entering upon the trial send another bill to the grand jury, and require the defendants to answer that. It is equally plain that where several persons are charged, whether they unite in a common defense, or as in this case where their defenses are separate and antagonistic, the court must regulate the order and manner in which the defenses are to be presented; and the exercise of this discretion cannot be reviewed in this Court. But as far as any rule of practice is to be found, it was observed in this case by calling on the defendant whose name first appeared on the bill, to begin his defense. This was done in Regina v. Barber, 1 Car. and Payne, 434, where the defendants' counsel were unable to agree among themselves.
PER CURIAM. No error.
Cited: S. v. Respass, 85 N.C. 536; S. v. Hastings, 86 N.C. 597; S. v. McNeill, 93 N.C. 555; S. v. Parish, 104 N.C. 689.
(560)