[1] On the 16th day of January, 1962, petitioner Ida Mae Bourbonnais filed in this court a petition seeking a writ of mandamus directing the Honorable Dwain Box, Judge of the Court of Common Pleas of Oklahoma County, to grant the petitioner a separate trial from her co-defendant, Geneva Anderson, in case No. 28229, in said court, wherein the petitioner and her co-defendant are charged with the offense of Petit Larceny.
[2] An order to show cause was issued for the respondent Judge Box to show cause why the writ prayed for should not be granted. *Page 523
[3] On January 18, 1962, the respondent filed a Demurrer and Motion to Dismiss these proceedings.
[4] Oral argument was presented to this court on the 18th day of January, and this court denied the petition and sustained the respondent's Demurrer and Motion to Dismiss.
[5] The question presented to the court on the hearing is neither new or novel. Succinctly stated, it raises the question of whether this tribunal may direct a court of competent jurisdiction to grant a severance in a misdemeanor case.
[6] Title 22 Okla.St.Ann. § 838 provides:
"When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court."
[7] It thus appears that the granting or denial of a severance in a misdemeanor trial rests within the sound discretion of the trial court.
[8] This court has repeatedly held that a discretionary ruling of the trial court will not be disturbed unless it can be clearly shown that the trial court's ruling was arbitrary or capricious.
[9] Furthermore, we are in accord with the rules of law adopted by this court in State ex rel. Boatman v. Payne, 97 Okla. Cr. 48,257 P.2d 842, which are as follows:
1. "* * * this writ (mandamus) does not lie to control the judicial discretion of the judge or court; and hence, where the act complained of rested in the exercise of this discretion, the remedy fails."
2. Errors committed in the exercise of a judicial discretion cannot be reviewed or corrected by mandamus.
[10] Therefore, we do not believe that this question is properly before us at this time but is reviewable on an appeal from a final judgment and sentence rendered against the accused as provided under Title 22 Okla.St. Ann. § 1051, which reads as follows:
"An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed."
[11] For the reasons above set forth, the petition for Writ of Mandamus is denied and the action dismissed.
[12] NIX, P.J., and BRETT, J., concur.