State v. Madden

Citations

• 90 Kan. 736
• 136 P. 327
• 1913 Kan. LEXIS 298

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Separate Trial — Demand Therefor After Trial Begun — Judicial ■ Discretion. Four defendants jointly charged with felony were with their counsel present in court when their case was called. The state announced itself ready for trial, when the defend; ants interposed a motion for continuance supported by the affidavits of each. After the latter were read the court suggested that as to one of the defendants no diligence was shown, but that the others had raised a question which would probably be for the jury. The state put upon the stand a witness and examined him orally and agreed that the affidavits of the three might be used as depositions of the witnesses named therein. A jury was then called and sworn to answer questions, whereupon the county attorney stated briefly the nature of the case. At this point one of the counsel for the defendants, who had been out of the room to use a telephone, demanded a separate trial, which demand was refused as coming too late. Held, that the right to a separate-trial (Crim. Code, § 218) is one that may be waived, and under the circumstances of this case at the time it was demanded severance became discretionary with the trial court and its refusal was not an abuse of such discretion.</p>