dissenting.
I differ from my brethren in respect to an important question of practice, which arises in this case.
Three defendants were jointly indicted, and two of them tried together. Cruce was found guilty, and brought his case to this court for review on several grounds of error.
In respect to the sufficiency of the evidence to sustain the conviction,-and the refusal of the court to continue the case, there is no disagreement in this court. We all think the .evidence sufficient, and that the presiding judge did not abuse his discretion in overruling the motion to continue.
But the defendant makes another question on which we differ. He says that he demanded the right to have twenty peremptory challenges himself, independently of those of his co-defendant, and that this right was denied to. him. The record does not disclose when he made the demand; at what *92stage of the trial; whether at the moment that the panel was first put upon him, or during the progress of the procurement of the jury, and in what particular stage of that progress. The bill of exceptions asserts that it was when the first juror was sworn, but the judge’s certificate, which controls, leaves it uncertain.
The ground taken in the motion for a new trial, is as follows:
“ Because one Benj. A. Gholston was jointly indicted with said defendant, and they did not elect to sever, and in challenging jprors, the court refused to allow the said defendant ■the twenty challenges to -which the defendant is entitled in a case of robbery, but restricted the two defendants to the number allowed, to-wit: twenty challenges.”
About which ground fhe judge’s certificate says: “ The defendant, Cruce, did not challenge any juror without receiving the benefit of the challenge, and the only decision made by the court on the subject of challenges was, that as the defendants had not elected to be tried separately, but desired to be tried jointly, when a juror was put upon the prisoners, that one of them could not accept and the other reject the juror, and thus, by antagonistic demands, block the trial of- the case.”
So that the naked question made, is whether, when two defendants do not elect to be tried separately,-but ££ desire ” to be tried jointly, and at any stage of the process of procuring the jury, insist that they shall have forty peremptory ■challenges instead of twenty, and when every juror objected to by either of them, or by the one complaining here, is set down, and not sworn to try the case, and thus he could not have been hurt by the ruling complained of,’ shall the ruling be pronounced error, and a'new trial be granted oh account "thereof ? To state .the question is, to my mind, to • answer .it. Before any defendant can ask to have his case tried again, he ought certainly to show, either that he was hurt, or could have been hurt, by what the judge did; but this record shows that this defendant could not have been hurt; *93for every juror objected to was ruled in competent by the judge; so that the twenty challenges allowed were not exhausted, and no harm was done in the not allowing forty challenges. It does seem clear to me that the bill of exceptions should show wherein the defendant was hurt; which juror he challenged and his challenge not allowed; and thus how, practically, he was injured by any ruling of the judge; and so this court has ruled substantially.
Again, if it be the privilege of the defendant, when tried with another, to double the number of peremptory challenges to which, in practice in this state, the defense is entitled, surely he should demand it when the panel is first put upon him, so that the court might, before a part of the jury had been obtained and sworn to try the case, direct that he be put upon terms, or be tried separately. But whether this was done in this case or not, the record does not disclose. It may have been done when half the jury had been selected and sworn, and when half a day. of the time of the court and county had been consumed on the case. It was certainly not done when the venire was first brought in, and the prisoners were placed at the bar for trial, and before the trial began.
In Charnock’s case—3 Salk., 80—three were jointly indicted for treason, “and having severally pleaded not guilty, Chief Justice Holt told them that each of them had liberty to challenge thirty-five of those who were returned upon the panel to try them, without showing any cause; but that if they intended to take this liberty, then they must be tried separately and singly, as not joining in the challenges ; but if they intended to join in the challenges, then they could challenge but thirty-five in the whole, and might be tried jointly upon the same indictment; -accordingly, they all three joined in their challenges, and were tried together, and found guilty.”
This ease shows that before the trial begins — when the venire is brought in — it must be determined whether the two' or more defendants will join in the challenges or not; *94and if they decline to join, that they must be tried separately. Tins is a very old case, tried in the reign of Queen Anne — the oldest reported case which I have found. It is true that Sir Matthew Hale, in the pleas of the crown, who wrote in the time of Charles II, I think, does say that if there be twenty tried together, each shall have his thirty-five challenges — the number allowed at common law, (2 Hale, 267,) but this mode of trial, with so many challenges peremptorily made by each of many defendants, was soon found to be wholly impracticable; and the rule adopted by Chief Justice Holt in Charnock’s case, to-wit: to require a joinder in the challenges, or to try separately, seems to have been adhered to since.
So Chitty, in his Criminal Law, vol. 1, p. 535, says: “ But when the right of challenging exists, though several defendants are tried by the same inquest, each individual has a right to the full number of his challenges; but if they refuse to join 'in thei/r challenges, they must be tried separately, in order to prevent the delay which might arise from the whole panel being exhausted.” Mark the language, tried by the same inquest,” that is, where the same full panel of jurors is arranged for their trial, and before that ■full panel is stricken down by challenges to the traverse jury, which passes upon the case.
So, too, in a note to the foregoing comment of Sir Matthew Hale, the learned annotator says, in the first American edition, (2 Hale, 275): “If several prisoners are jointly indicted and join in their challenges, they can only challenge the limited number of the wholej but if they are tried separately, then each of them map challenge the whole number.
So Bishop (Crim. Proc. 1 vol., 969,) says: “ But the method which seems alwa/ys in later times to have been pursued, was either to try the prisoners separately, or else to obtain their consent to join in their peremptory challenges.”
So Hawkins says: “ It seems agreed that when several *95persons are arraigned upon the same indictment, and severally plead not guilty, it is in the election of the prosecutor, either to take out joint venwes against them all, or several against each of them.” Where the venires are several, the prisoners are to be tried separately.” (Bishop Crim. Proc., 971.)
So, in T. U. P. Charlton’s R., 22, in the case of the state against Monageuo and Segar, Judge Jones said after solemn argument: “ In considering the objections of the prisoners in arrest of judgment at the last term, the second objecwas overruled; for that if they had wished the liberty of challenging peremptorily each twenty jurors, they should have claimed that liberty when sent to the ba/r to be tried; but having agreed in their challenges, they could challenge but twenty in the whole, and one jury was therefore rightly sworn and charged with them.” This was an old Georgia case, tried in 1805, and settles what was the idea of the common law in Georgia at that time.
All these cases and comments show conclusively that at common law, the practice was to settle the question of whether the prisoners would jointly or severally challenge at the very outset of the case; and if they wished to challenge jointly, then they were tried jointly ; if they wished to challenge separately, then they were tried separately. “When set to - the bar to be tried,” is the time fixed in the language of our Georgia judge, who quotes Fost., 16; Kel., 9 ; 3 Salk , 81.
So that it seems settled that the conclusion was reached at common law to determine the question of joint or several challenge by calling upon the prisoners to elect, at the very beginning of the trial, whether they would insist on separate challenges; and if they did so insist, then the crown would try each of them separately. It will be observed that, at common law, the right to sever was in the crown, not in the prisoner. True, it rested in the discretion of the judge, but at the instance of the crown. The prisoners had no choice. If the judge, at the instance of the crown, ordered a joint *96trial, it was joint, no matter wliat the prisoner wished; if the judge ordered it to be several, it was so, no matter what the prisoner desired. Tie stood helpless, speechless, in the presence of the crown officer and the court, with no right to sever, but wúth the single right of thirty-five challenges. So that the moment the venire had issued and the panel appeared, and “ he was set to the bar to be tried,” he had to say, “ I insist on my separate challenge,” and then the court would not grant his separate and several challenge, on a joint trial, but it would order him to be tried-separately. To show that I am right in the assertion that the prisoner had, at common law, no- right to sever, but that it rested with the crown officer, at the discretion of the court, to try him as he pleased, jointly or separately, I quote 1 Bishop Crim. Prac., 959, as follows: “When the indictment is properly made joint against, more persons than one, it is never the right of. the defendants, as the matter stands at common law, to demand sejrarate trials.” And'so Chitty and the other text writers, and all the authorities I have looked at, say. . -
But in this state, the right to sever is in the prisoners, or either of them. So it is distinctly railed in 37 Ga., 80, by a unanimous bench, overruling the intimations in 34 Ga., 10, and confining the last quoted case, it being for riot, to cases where it takes two or more to commit the offense.
Thus -it settled in this state, that whenever two or more are jointly indicted for an offense of which either might be guilty alone, either has the legal right to sever, and the court must grant it. And in practice, the judge uniformly (as in this case the judge did), asks the ¡prisoners the moment they are brought in, or “set to the bar for trial,” as Judge Jones.said in the case in Charlton’s Reports, “Will you sever or try-jointly?” and if they choose to sever, then the state is asked, “Whom will you try first?” In 1st Kelley, 610, this is laid down as the rule, and it has been followed ever since, and was the practice before. In the case now before us, this choice was given to this prisoner, and he chose to be *97tried jointly witli the other; which meant a choice, on his part, to be tried, from the beginning to the end of the trial, jointly, with all the incidents and rules of a joint trial. The trial begins when the panel of jurors is arrayed before the prisoner, and closes with the verdict. Frequently, the most important part of the trial is the selection of the jury; and counsel familiar with the citizens of the county, are often employed solely with a view to select the jury — to strike and to challenge; and when this is done, they are no longer of service. “ Trial is the examination of the matter of fact in issue,” 3 Blackstone Com., 330; and trial by jury is that examination by a jury duly selected. That the selection of the jury was, at common law, a most -important element in the trial, see Blackstone, 3d book, chap, xxiii—particularly page 357, et seq. to 366; also, 4th book, chap, xxvii, p. 349 et seq. to 356. So our own Code, §3907 et seq., §§3930, 3935, 4678, 4685, 4643. See, also, 1st Kelley, pp. 222, 213, 618, 631.
It is plain, therefore, that this man and his counsel had their right to a separate venire, a- separate challenge, and a separate trial, from beginning to end, accorded to him; and that for reasons best known to his counsel and himself, he preferred one veni/re, joint challenge and joint trial. He got what he desired and chose, and he cannot complain.
But it is said that the language of the Code is, “ every person indicted,” etc., etc., “may peremptorily challenge” twenty jurors. Section 4643. So it, does say; and so may every person have the twenty, whether indicted jointly or severally, by simply choosing to be tried separately. Besides, the singular number includes the plural in our Code, “ unless expressly excluded.” There is no express exclusion here. Code, section 4 — sub-section 4.
Again, see how much confusion a jointtrial, with separate challenges, will work; part of the trial joint and part separate. A separate count must be kept as to each prisoner, and then the state must have half the number each prisoner has — Code, §4643 — and the count must be kept of that.
*98Again, where two prisoners try together, they would have forty challenges ; and then the .state would have twenty. So that the state would have the right to reject, against that prisoner whom it wished particularly to convict, twice as many as on a separate trial; and as the prisoner would have but twenty, the state, instead of having half the number the prisoner had, would have practically and virtually an equar number, which is in the teeth of the statute.
Again, every person tried is entitled to his witnesses; his right to witnesses — competent as to him — is just as sacred as his right to jurors, to challenge jurors; yet, who ever heard that, in case of. a joint trial, he could have sworn all the witnesses competent as to him, if incompetent as to the others on trial, unless, "by an agreement with the state, the right was reserved before the trial began. So, by choosing to try jointly, he looses h'is right to competent witnesses; why not his right to challenge all of twenty jurors?
Again, all of the court think that he will loose his right to conclude, though he has introduced no witness; if so, why not his right to challenge the whole twenty allowed ? The right to conclude the argument is a great right. Sometimes many witnesses will not be sworn, and much testimony will be sacrificed in order to secure this right. Yet, by choosing to try jointly, he will loose it, though the law says he shall have it, unless he introduces testimony. Code, §1615.
Again, five are jointly tried. Three introduce evidence and two none; which of the two shall conclude upon the the other? Both are entitled to it; for neither introduced any evidence. See what an inextricable labyrinth of confusion must grow up out of such a practice; and how certainly, in the language of the circuit judge who tried this case, the trial — a clean, fair trial — would be Moelced. No wonder-an English judge, in the olden time, when an effort was made by a prisoner to get a separate trial as to challenge, but joint in some other respects, said to him: “ I perceive your subtilty”; and hence, made him- try all joint — challenges and all — -or all separate.
*99It will be observed that in England, and at common law, tbe defendant had no right to sever, but the crown had that right; while .the crown had no peremptory challenges at all. So that, even if it had been the practice at common law to allow, in joint trials, separate challenges — which I do not concede — the courts would not there have experienced the difficulties which I have shown would arise here, in allowing the state one-half the prisonér’s challenges. See 4 Blackstone, 353. So in respect to the right to conclude, the crown, I believe, having the right in all cases, as the state did here, until altered by the act of- .1851 and 1852.
In view of the entire law, common and statute, my mind comes irresistibly to the conclusion, that although at one time the courts of England may have tried cases jointly, and permitted separate challenges, the practice was abandoned, because it was found to work great confusion there; and this change in the practice can be traced back as far as Queen Anne’s reign, when the prisoner was allowed by the judge, when set to the bar, to select between a joint trial, with all its consequences, and a separate trial, with all its advantages, including the right to a separate challenge. And that, in this state, the practice has been uniforn and unbroken, so far as I have ever known, from Judge Jones’ day, 1805, up to this year of our Lord, 1877. “ Stare decisis” is a great maxim, useful and practical in beneficent results; let the practice stand, unless squarely in the teeth of the law, is practically of equal importance. Changes in it breed litters of confusion and uncertainty. I cannot give my assent to the opening of this Pandora’s box, which, it seems to me, would result. Besides, this court has ruled the point in 13 Ga., 322. It is true, that was a case where the offense was an affray, and the offense required the act of both; still, the principle ruled is, that every person tried is not entitled to the number of challenges allowed him by law, if he is tried with others.