People v. Tilzer

Per Curiam. This case was heard on defendant’s application, consented to by the district attorney, upon the printed record in People v. Marcus (220 App. Div. 697). The points presented by the appellant Tilzer are discussed in the opinion filed in the Marcus Case (supra). The constitutionality of section 391 of the Code of Criminal Procedure (as amd. by Laws of 1926, chap. .461), so far as it affects the number of peremptory challenges allowed to the defendant, is not presented on the record before us. The clerk’s minutes of the trial recite that the jury was “ duly drawn, examined, accepted, empanelled and sworn to try this issue, the defendants having been informed of their rights under section 369 of the Code of Criminal Procedure.” This section refers to defendant’s right to challenge jurors. There is nothing in the record to show that the appellant’s right to challenge jurors was interfered with in any way. The motion for a separate trial was not made until after the jury had been impanelled and sworn. We can find nothing in the record to indicate that the learned trial justice erred in the exercise of his discretion in refusing a separate trial to the appellant, whose individual rights appear to have been carefully protected by the trial justice in his charge to the jury. The judgment of conviction should be affirmed. Present — Kelly, P. J., Manning, Kafper, Lazansky and Hagarty, JJ. Judgment of conviction unanimously affirmed.