*17 By the Court.
Jenkins, J.delivering the opinion.
Two only of the questions, presented by the Bill of Exceptions, were insisted on at the hearing before this Court.
[1.] The first point to be considered, is whether the defendants in the Court below were, or were not entitled, upon their mere motion, (without special cause assigned,) as a matter ot right, to sever on their trial; or whether the severance was a matter in the discretion of the Court. There can be no doubt that by the Common Law the privilege rested upon the discretion of the Court. In the case of the U. S. vs. Marchant & Colson, 12th Wheaton 480, this subject was fully discussed, and the authorities reviewed by Mr. Justice Story: the conclusion of the Court, being that “where two or more persons are jointly charged in the same indictment, with a capital offence, they have not a right, by law, to be tried separately, without the consent of the prosecutor; but such separate trial is a matter to be allowed, in the discretion of the Court.” To the same effect is the decision of the Supreme Court of the State of New York, in the case of The People vs. Vermilyea, 7th Cowan’s Reports, 138, 140, 383. Authorities might be multiplied.
The question, then, is resolved into this, whether or not the Common Law rule on this subjeckjias been changed by any statute of Georgia. The only section of the Code (now of force) which touches the question, is the 4574th, as follows: “Where two or more defendants shall be jointly indicted for any offence, any one defendant may be tried separately,” &e. The remainder of the section applies only to cases wherein the offence charged requires the joint action of two or more persons, and simply enacts “ that the acquit* tal or conviction of one shall not operate as the acquittal or conviction of any of the others.”
According to all known practice and right reason, where a case is called for trial, in which two or more are jointly charged, and all parties announce themselves ready for trial, Without special motion as to the order of proceeding, all of *18the parties charged would be placed on trial. By the Common Law, however, and by the section of our Code above quoted, there may be a departure from this course. But how shall it be determined whether there shall or shall not be a departure? We have seen that at Common Law, that rested in the sound discretion of the Court.
Is there any indication in the phraseology of this section, that the Legislature intended to introduce a new rule ? We can see none, unless the word may is to be construed as shall. If this be the right construction, the consequence would be, that under no circumstances can perspns jointly charged be jointly tried, for there is no limitation or qualification super-added. The separate trial of any one would not depend upon his desire, or demand, nor yet upon any special circumstances in his case; nor, indeed, upon the willingness of the Court to gratify his desire, but upon an arbitrary rule of law. He is one of several jointly charged with crime, and if moAj, in this section, means shall, he must be tried separately, a concurrent desire for a joint trial by the Court, by the State’s counsel, and by the defendants, to the contrary notwithstanding.
But it may be said, this is a strained construction; that the' reasonable construction is, that any one desiring it — any one so electing — shall be tried separately. The reply is, that this goes to the extent of not only varying the ordinary signification of a word, but of interpolating other words. They who would construe “ may ” as <£ shall,” and at the same time escape the dilemma of abolishing altogether joint trials, in joint indictments, assume that the Legislature (although they used no words of limitation) intended to restrict that provision to cases of joint indictment, wherein some one or more defendants demanded a severance. They interpret the Legislature as saying, the Court shall try any party jointly charged with others, separately, m the discretion of that jparty. Forced to admit discretion abiding in some breast, they claim it for the accused. Our view is, that if the law give a discretion, to do or not to do, a particular thing, in *19the trial of a cause in court, without specifying by whom it is to be exercised, the Judge, who is the expounder of the law, and the controlling power, is, by general intendment, the depositary of that discretion.
But a reference to past legislation will throw light upon the subject:
The 50th section, 14th Div. of the Penal Code of 1833, (Oobb’s Digest 841) is in these words : “ When two or more defendants shall be jointly indicted for any offence, any one defendant may be tried separately, except such offences as require the action and concurrence of two or more to constitute the crime, and in such cases the defendants shall be tried jointly.”
By an act passed March 5th, 1856, amendatory of this section, it was enacted, “ When two or more persons shall be jointly indicted for an offence, the commission of which requires the joint action or concurrence of two or more persons, any one of such persons, or more than one, may be put on trial without putting the other defendants on trial, at the same time; and the acquittal or conviction of any one, or more, of said defendants, shall not operate as an acquittal of any of the other defendants not put upon trial, but they shall be subject to be tried in the same manner as the other defendants.”
Then comes the 45J4th section of the Code, which super, cedes both the others, in these words: “ When two or more defendants shall be jointly indicted for any offence, any one defendant may be tried separately; and if the offence be such as requires the joint action or concurrence of two or more persons, the acquittal or conviction of one shall not operate as an acquittal or conviction of any of the others not tried, but they shall be subject to be tried in the same maimer.”
Now, these several enactments are all in pari materia, and it is very evident that it was intended to incorporate into the new Code the other two enactments ; or, in other *20words, to retain the 50th section, 14th Div. of the Penal Code of 1833, as amended by the act of 1856.
The first clause of the section in the new Codeis identical with that in the section of the Penal Code of 1833, and it is precisely there that the word “ may ” occurs. But in the latter clause of the 50th section, 14th Div. of the Codo of 1833, the word “ shall ” occurs — “ the defendants shall be tried jointly.” We think it abundantly clear that “may” in the first clause, is not used synonymously with “ shall,” in •the last clause. “ May ” is permissive, reposing discretion somewhere; “shall” is peremptory, precluding all discretion. As already remarked, the Court must be recognized as the depositary of the discretion given. We do not say it is an unbridled, uncontrollable discretion; but where severance is demanded as a right, unsupported by cause shown, and refused, we are wholly indisposed to interfere with the exercise of the discretion.
[2.] But it is alleged that the Court erred in refusing a new trial, on the ground that the verdict is contrary to the evidence. What is the nature of the offence charged? “If any two or more persons, either with or without a common cause of quarrel, do an unlawful act of violence, or any other act in a violent and tumultuous manner, such persons so offending shall be guilty of a riot.” Sec. 4400, Code ot Georgia. The evidence is that the defendants were members of a military organization, assigned to the special duty of seeking for and arresting deserters from the army, and having their headquarters near Atlanta. Some of the neighbors of the prosecutor, residing a few miles from Atlanta, notified the commander of this force that there was in the neighborhood a band of lawless, desperate men, (believed to be deserters,) who were committing depredations upon the citizens. Thereupon, the commander issued written instructions to Lieut. Caldwell to detail twelve picked men, and proceed to the neighborhood designated, and arrest such men as were complained of, at the hazard of their lives. “ The order enjoined upon him to be prompt and pnodent, and after crossing *21Peachtree Creek to ingioi/re at every house, where information might be obtained touching the whereabouts of the characters he was in guest of.”
The defence in the Court Below was placed partly on the ground that this order, under which they assembled and proceeded to act, saved them from the pains and penalties of a riot, notwithstanding any subsequent violent and unlawful conduct; but, upon better consideration, that line of defence has been abandoned in this Court. Thus authorized and instructed, let us see how they deported themselves. The house of the prosecutor was,the first at which they called, arriving there after night, when the inmates were about retiring to rest. They first sought admittance on the plea of wanting water, which was furnished them by a servant, without being permitted to enter. They then peremptorily demanded admittance, which was refused, and they requested to go away. Did they state who they were, and under what authority, and for what purpose they came? Did they “ inquire touching the whereabouts of the persons they were in search of? ” Were they “ prudent f ” The evidence furnishes a negative answer to each of these questions. They sought to open a window by force, declaring they “ would come in, or Imock out every' damned door and windoio in the house.” Accordingly, they called for an axe and actually broke a window, shivering the glass and sash. One of them then proceeded to enter the broken window, and was shot by the prosecutor in the act. They then fired several guns into the house, some of the balls entering the bedding, some passing over the heads of the children in their hiding place, and others flying all around the prosecutor, but, providentially, not inflicting even a wound upon the unoffending party thus lawlessly assailed. In short, the whole conduct and bearing of these men was precisely what might have been expected of the deserters, marauders, and burglars, whom they were sent to arrest, and doubtless caused them to be mistaken for that desperate and dreaded band of felons.
Did Collier incur the guilt and penalty of murder, or even *22of manslaughter, by killing Knight, who was entering the window immediately i;pon breaking it ? Why not ? Because the person killed was violently and unlawfully entering his dwelling. This is a fair test. The evidence, indeed, screens them from the guilt and penalty of burglary, because it raises no presumption of intention to commit a felony after entrance; but it stamps their whole conduct with the character of aggravated riot. So far is the verdict from being-contrary to the evidence, that evidence would have shamed a jury returning any other verdict.
The judgment below is affirmed.