— Appellant and one Allen R. Dixon were jointly charged with the crime of second degree burglary in the Shelby Circuit Court. On motion of the defendant Dixon, the cause was continued as to him; and the cause was submitted to the court for trial without a jury as to the appellant only on June 23, 1961. At the conclusion of the evidence, on the same day, the appellant was found guilty of second degree burglary and sentenced to imprisonment in the Indiana State Prison for a period of not less than *641two nor more than five years, and judgment was entered accordingly. Thereafter, on the same date, an order of commitment was entered, which, after setting forth the facts in the judgment, contained the following provision:
“The Court further finds that by reason of the character of said defendant, and the facts and circumstances surrounding the commission of said crime, the interest of society does not demand or require that the defendant shall suffer the penalty imposed by law, if he shall hereafter behave well. It is therefore ordered by the Court that the execution of the sentence herein imposed be suspended during the defendant’s good behavior, and that he be permitted to go at liberty on probation so long as he behaves well.”
First: Appellant assigns and here argues as error, that the court erred in submitting this cause for trial as to this defendant [appellant] only without first formally ruling upon a motion that the defendants be tried separately. Appellant asserts that since no motion was filed asking that the defendants be tried separately, it was error for the court to so try appellant. The contention is without merit. The statute specifically provides:
“When two (2) or more defendants are jointly charged with any offense, whether a felony or misdemeanor, they shall be tried jointly, unless the court, in its discretion, on the motion of the prosecuting attorney, or of any defendant, or on its own motion, orders separate trials. ...” [Our italics.] Acts 1935, ch. 92, §1, p. 286, being §9-1804, Burns’ 1956 Repl.
The trial court has wide discretion in the matter of granting separate trials to co-defendants in a criminal charge. Since the record clearly indicates a determination on the part of the court that the defendants be tried separately, the *642absence of a formal entry to the effect was a mere technicality. There is nothing in this record which indicates that the trial judge in any way abused his discretion in conducting the trial of the appellant separate from his co-defendant or that this appellant was in anywise prejudiced thereby.
Second: Appellant contends that the evidence was not sufficient as to the identification of the appellant. The conviction of appellant was based on the identification by a witness, Darlene Robins, daughter-in-law of the owner of the burglarized TV and appliance store, who observed appellant in the storeroom, at about 9:30 P.M., through a large plate glass window, for a period of approximately thirty seconds, at a distance of 25 to 30 feet. At the time, he was standing under a bright light reaching for a transistor radio. She described him as being a man, wearing a windbreaker jacket, about five feet 11 inches tall, with long wavy light brown hair, and without glasses. The witness identified appellant about three hours later at police headquarters, and at the time of the trial was positive of her identification of him.
Appellant makes much of the fact that David C. Robins, owner of the business who also saw him in his store, could not identify him. However, the owner’s observation came only after his being summoned by his daughter-in-law and this was at the time the burglar was crawling away from them between the radio and television sets toward the rear of the store, where he had gained entrance by breaking a window. The owner did not see appellant’s face and, therefore, obviously could not identify appellant. We cannot say the evidence identifying the appellant as the burglar was not sufficient.
*643Third: Appellant asserts that the court committed error in sentencing appellant and committing him to the sheriff for the execution of the judgment without first requiring and receiving a precommitment investigation report, as required by Acts 1959, ch. 264, §2, p. 632, being §9-2252, Burns’ 1962 Cum. Supp. For this reason appellant asserts that the judgment was erroneously entered. The statute provides:
“No defendant convicted of a felony shall be committed by any criminal court of record before a written precommitment investigation report, prepared by a probation officer, is presented to and considered by the sentencing court. ... If a defendant is thereafter committed to any penal and correctional • institution the investigating agency shall send a written report of its precom-mitment investigation to the penal institution at the time of commitment.”
The provision of the above statute is mandatory. Failure of the trial court to comply with its terms is, therefore, under the facts of this case, a proper cause for redress to this court. The order of commitment made, without such precommitment investigation and report, must be vacated.
Four: Appellant asserts and here argües as error the fact that the judge of the Shelby Circuit Court, on February 15, 1962, entered a nunc pro tunc entry in the cause modifying the order of commitment by striking therefrom the provision which suspended the order of commitment. Appellant asserts that this act constituted reversible error for three reasons: First, because the Shelby Circuit Court had lost jurisdiction in the case by reason of the fact that jurisdiction in all criminal cases had been transferred to the Shelby Superior Court on July 1, 1961, by an act of *644the legislature creating the Shelby Superior Court and defining its jurisdiction; secondly, because the entry was made without any prior notice upon the appellant and was made in his absence, and, third, because there was no written memorandum or memorial of record upon which to sustain the action of the court in making the nunc pro tune entry.
It is not necessary for us to decide the question presented with respect to the making of the nunc pro tunc entry because, as heretofore stated, the original order of commitment made by the court without a precommitment investigation. was improvident and, therefore, it being the first error properly assigned is cause for appeal, all orders thereafter made, including the nunc pro tunc entry, are nullified.
The cause is, therefore, remanded to the Shelby Circuit Court1 with instructions for the judge thereof to vacate the judgment and order of commitment and the nunc pro tunc entry thereafter made modifying said order of commitment, and thereupon to proceed in the cause in a manner consistent with this opinion.2
Arterburn, Landis and Myers, JJ., concur. Jackson, C. J., dissents with opinion.. The statute which provides for the transfer of criminal cases in the Shelby Circuit Court to the Shelby Superior Court excludes from its provision cases in which trial has been commenced and in which final judgment has not been made and entered by the Shelby Circuit Court. Since this case was tried by the Shelby Circuit Court but the judgment improvidently entered, that court retains jurisdiction upon remand of the cause for such proceedings as were necessary preliminary to the entering of the final judgment therein. Acts 1961, ch. 95, §7, p. 182, being §4-4407, Burns’ 1962 Cum. Supp.
. See: Ritchie v. State (1963), 243 Ind. 614, 189 N. E. 2d 575.