Dantz v. State

Elliott, J. There are three counts in the indictment against the appellants. The first two charge them with having committed a misdemeanor jointly with one David W» Carpenter, and the third makes a charge against David WCarpeuter alone. It is insisted that the appellants’ motion to quash, upon the-ground that there was a misjoinder of defendants, should have been sustained. We think otherwise. The first two counts charged the defendants jointly, and described a joint offence, and were therefore good as against all of the defendants. It is quite well settled that a motion to quash addressed to an entire indictment should be overruled if there is one good count. Casily v. State, 32 Ind. 62. The defendants moved to comjicl the prosecutor to elect upon which counts of the indictment he would try them, and the court required an election to be made; whereupon the prosecutor elected to proceed to trial upon the first and second counts; the defendants objected, and asked that the prosecutor be compelled to single out and elect one of the counts; ■this objection the court overruled. There was no error in [399] this ruling. These counts charged the same offence against the same persons in different forms, and the court was not bound to compel the State to make an election. It is, indeed, discretionary with the trial court to grant a request to compel an election, and it is only when the discretion is abused that the appellate court will interfere. Lamphier v. State, 70 Ind. 317; Bell v. State, 42 Ind. 335; Mershon v. State, 51 Ind. 14; Snyder v. State, 59 Ind. 105. After the jury had been empanelled and the trial begun, the prosecutor entered a nolle prosequi as to David W. Carpenter, and the appellants then asked leave to withdraw their plea of not guilty and enter a plea of guilty; the court refused to permit the withdrawal of the case from the jury, and submitted the ease to the jury for trial. No question is presented upon this ruling, for the reason that no exception was taken. We can not say that the verdict is not sustained by the evidence. The record show's a confession of guilt in open court, and in the presence.of the jury, and this was sufficient to sustain a conviction. Eastman v. State, 54 Ind. 441; Griffith v. State, 36 Ind. 406; Behler v. State, 22 Ind. 345. In Anderson v. State, 26 Ind. 89, the only evidence offered against the accused was his own confession made while testifying as a witness in another case, and it was held sufficient to sustain a conviction. Judgment affirmed. Howie, J., did not participate in the decision of this case.