The 55th section of the 10th chapter of the penal code, among other things provides, that “ on a trial for any penitentiary offence, the accused shall be allowed'fifteen peremptory challenges.” [Clay’s Dig. 459.] This enactment, it is insisted, makes it imperative upon the court, where several are charged in the same indictment, with a crime of the grade of that designated, to allow to each of the defendants a separate trial.
At the common law, it must be conceded, that it was discretionary with the court, in such cases, to direct or refuse a severance.
The precise ground upon which the right tp a separate trial is rested, in the case before us, was most elaborately considered in the United States v. Marchant, et al. 4 Mason’s Rep. 158. There, a joint indictment was found against several for murder, who severally pleaded not guilty. A motion was made in behalf of one of the prisoners to be tried separately ; and this he claimed as a matter of right. Mr. Justice Story was of opinion, that upon a joint indictment for a captal offence, it would be competent to try the prisoners, either jointly or severally; that where the trial is joint, the right of peremptory challenges is. in no degree narrowed or affected. Each prisoner, in such case, has a right to challenge the full number, and, in this respect, is unaffected by what the other prisoners do. “ If, therefore, says the learned Judge, “in a capital offence, where twenty peremptory challenges are allowable by law, there is a joint indictment, and joint trial of several persons, each may challenge the whole number to which he is entitled; and if there be two on trial, the challenges may extend to forty; if three, to sixty,” &c.
As for the question, whether a juror challenged by one prisoner, and not by another, was to be withdrawn as to all, it was.considered settled upon just and reasonable principles, *141that no man ought to sit as a juror, upon a joint trial, who was not in the estimation of all the prisoners indifferent as to all.
In the case cited, it was argued for the prisoners, that the right of separate trial, when claimed, results necessarily from the several fight of challenge. The prisoner, in favor of life, it was said, had a limited right to elect his jury. If he is tried alone, it is always in his power to say.who that jury shall be. But if he is tried jointly with another person, then the jurors he may wish to serve on his trial, may be challenged by the other prisoner, and so his right of election and selection may be materially impaired. The court thought that the argument took for granted, the very point in controversy ; and while it conceded that the right to challenge for cause is unlimited, it affirmed that the right of peremptory challenge was restricted.
It is asked, “-what,is the right of peremptory challenge, but a right to exclude from the trial any persons who are disagreeable to the party on trial ? Suppose the panel to consist of 72 persons, and the challenges to be limited to 20, all that the prisoner can do is to exclude 20 from this list; ánd it depends altogether on the order in which the jurors are called, who may be excluded or not. If the prisoner challenge the first 20 who are called, the next 12 called from the remaining 52 constitute, the jury. It is true, that if he chooses to suffer any juror to be sworn, before he has exhausted his challenges, to that extent he selects his jury; but this is a mere incident to his right to exclude jurors, to a limited extent; and not the principal object contemplated by the law.” The reason upon which the right of peremptory challenge was placed in the argument at the bar, is not referred to by the text writers, but it is placed on the ground of the tenderness which the law extends in favorem vitce, to those who are charged with capital offences, and is regarded for the most part as a concession to the caprice and prejudice of the accused.
The power of one person, when tried alone, to say who shall compose his jury, even if those whose names aré on the panel furnished, cannot be admitted, not only for the reason stated, but for the additional reason, that in a case like *142the present, the State is authorized to challenge ten jurors, without cause; and if this right is exercised, it may make it still more difficult for the accused to select the jurors whom he prefers.
The view taken, is very fully sustained by the argument of the court, and the numerous citations made in the case referred to. That case was removed to the Supreme Court of the United States’upon a certificate of division of opinion of the Judges of the Circuit Court, and was again considered upon a reference to the early English decisions, as well as the elementary writers upon criminal law. The court said, that the right of challenge is not in itself the right to select, but to reject jurors. It enables the prisoner'to say who shall not try him, but not to say who shall be the particular jurors to try him. “ The law presumes that every juror sworn in the case is indifferent, and above legal exception; for otherwise he may be challenged. What jurors in particular shall try the cause, depends upon the order in which they are called ; and the result is a mere incident following the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge.” The English authorities cited by the counsel, for the plaintiff in error, are commented on, and it is very satisfactorily shown, that they do not sustain the conclusion which it was insisted at the bar they establish. None of tire earlier adjudications, it was said, maintain that there could not be a joint trial, where the prisoners challenged. What fell from Lord Holt in Charnock’s case, in respect to a several trial, referred solely to the public inconvenience, on account of a probable defect of jurors, and not to airy matter of right in the prisoners. [See Rex v. Noble, 19 Harg. St. Tr. 1, 15; Howell’s St. Tr. 731.]
In Bixbe v. Ohio, 6 Ohio Rep. 86, it was determined, that two indicted of a joint offence, may be tried jointly, though .a separate trial is demanded by one of them; and where several are thus indicted, and put upon their trial, each must be .allowed his separate peremptory challenge of jurors. To the same effect is the case of the United States v. Wilson, 1 Bald. Rep. 78.
In the United States v. Shop, et al. 1 Peters' C. C. Rep. 118, the court permitted three of seven prisoners indicted *143jointly, to be tried separately from the other four, upon a motion by them, suggesting that the defence was different in some respects, and at variance with then co-defendants, and that it was difficult to agree in the challenges of jurors. It does not appear from the report of the case, that a separate trial was either claimed or conceded as a matter ef right. So that the case "is not an authority for the purpose for which it was cited. The People v. Howell, 4 Johns. Rep. 296, is equally inconclusive. It was there insisted, that the prisoner being entitled to a peremptory challenge, should not be tried jointly with his co-defendant. To which the court replied, that he was not entitled to a peremptory challenge, and consequently the force of the objection was destroyed. “In all cases, at least where the right of peremptory challenge does not exist, and two persons are indicted jointly, they may be tried jointly or separately; at the discretion of the court. This- is the settled practice, both here and in England, and no objection to it exists sufficient to outweigh the public convenience of the rule.” Certainly there is no affirmation in this, that if a challenge without cause be allowable, a separate trial should be accorded as a matter of right. None of the cases cited show such to be the law, while the reverse is supported, not only by express adjudications, but by reasoning too potent-, and too long recognized, to be disregarded. We are of opinion, that the law as we have stated' it from Máson, was correctly adjudged, and without reiterating what has been said, we are content to conform to it; consequently, the Circuit Court did not err in the points ruled in the bill of exceptions.
The verdict of the jury affirms the guilt of Hawkins as charged in the indictment, viz : that he committed the assault and battery, with the intent to kill and murder. This is confessedly a finding co-extensive with the charge ; but it is supposed that the consideratwm est, consequent upon the verdict, is defective, and that it does not show the plaintiff in error is subject to imprisonment in the'penitentiary, although he is directed to be thus punished. That portion of the entry is as follows: “It is therefore considered by the court,that the prisoner, C. Spencer Hawkins, is guilty of an assault with intent to kill, and that he be, and is hereby, sentenced-*144to imprisonment in the penitentiary,” &c. So much of the judgment as is an affirmation by the court of Hawkins’ guilt, may be rejected as surplusage. The jury had ascertained his guilt, and it was enough for the court, without reiterating it, to have followed their verdict by adjudging the appropriate punishment. This has been done, and the surplus-age cannot avoid the judgment. Utile per inutile non vitiatur.
The judgment of the Circuit , Court is affirmed.