may sever in their defenses, and may demand separate trials. The application for a change of judge by Cunningham was a declaration that he desired to sever in his defense, and that was a declaration he had a right to make, whether the party jointly indicted with him was or was not present. It is not necessary for a party who claims a right to sever to make an explicit declaration of his election. It is sufficient if his acts are such as indicate an election to be separately tried. One of two defendants, jointly indicted, has a right to apply for a change of venue, and the effect of granting the order is to sever the defenses, leaving the defendant who does not apply for a change to be tried in the court where the indictment was found, and carrying the trial of the other defendant to the court to which the cause was ordered upon his application. State v. Carothers, 1 G. Greene, 464; State v. Martin, 2 Ired. 101; State v. Wetherford, 25 Mo. 439; Hunter v. People, 1 Scam. 453; State v. John, 2 Ala. 290; 1 Bish. Crim. Law, § 75; Whart. Crim. Pl. & Pr. (8th. Ed.) 602.

In Brown v. State, 18 Ohio St. 496, it was held that a change of venue, upon the application of one of several defendants, was proper, and that it operated as a severance. The court there said:

"It seems quite clear to us that a motion by one of two persons, jointly indicted, for a change of venue, necessarily involves and includes a motion for a separate trial, and that the granting of such motion necessarily involves and includes the granting of a separate trial also."

As the motion made by Cunningham for a change of judge necessarily involved the declaration of an election to be tried separately, it follows that the appellant was not entitled to demand that he should be present when it was made and acted upon, since that matter concerned his codefendant alone. Where there is a severance, it is not necessary that all who are jointly indicted should be in court when orders are made that affect one only of the defendants. It is, indeed, held by respectable courts that the defendant need not be present when an application for a change of venue is made in his own behalf. State v. Elkins, 63 Mo. 159; Hopkins v. State, 10 Lea, 204; Rothschild v. State, 7 Tex. App. 519. This rule is in harmony with the decision in Epps v. State, 102 Ind. 539, S. C. 1 N. E. Rep. 491, that a defendant need not be present at the hearing of motions, although he must be present on the trial. There are authorities supporting this doctrine, among them: State v. Jefcoat, 20 S. C. 383; State v. Fahey, 35 La. Ann. 9; State v. Clarke, 32 La. Ann. 560; State v. Harris, 34 La. Ann. 121. We need not, however, go further in this instance than to declare that one of two defendants, jointly indicted, may apply for a change of judge; that the application involves a declaration of a demand for a separate trial; and that the presence of the person jointly indicted with the defendant, at the time the application is made or ruled on, is not required.

It is within the discretion of the trial court to direct the employment of counsel to assist the prosecuting attorney in conducting a trial against a person accused of felony. Wood v. State, 92 Ind. 269; Siebert v. State, 95 Ind. 471; Tull v. State, 99 Ind. 238; Bradshaw v. State, 22 N. W.

Rep. 361; State v. Montgomery, Id. 639. The trial court did the appellant no legal injury in appointing counsel to assist the prosecution; nor was there anything said, in announcing its rulings upon that question, which trenched upon any of the appellant's rights. It is a mistake to suppose that one jointly indicted with another has a right to a joint trial. On the contrary, at common law, the prosecution might demand separate trials, and, under our statute, any defendant may demand that a separate trial be awarded him. The court, where justice requires it, may suggest in express words the propriety of separate trials.

The court, on the motion of the appellant, sent the jury to inspect the premises where the homicide was committed, and did not direct that the defendant should be present when the inspection was made, but no request was made by the defendant that he should be allowed to be present; nor was there even a suggestion to the court that he desired to accompany the jury; nor did he, although he was present when the jury left the court-room, ask that he be permitted to go with them; nor did he object in any manner to their making the inspection. But the record shows more than this, for it shows that the court directed the attention of the defendant and his counsel to the statute, stated that it required the consent of the parties, and inquired if they consented to the order, to which inquiry, as the record recites, the defendant's counsel responded "by renewing their request, and defendant indicated his assent." Many authorities are cited by counsel in support of the general principle that the defendant must be present when evidence is given against him; and that this is the general rule we have no doubt, but the question here is whether the case is within the rule, not what the general rule is. Whether the case is within this general rule must depend upon the provisions of our statute and the conduct of the appellant. Our statute provides that "whenever, in the opinion of the court, and with the consent of all the parties, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the officer and the person appointed to show them the place, shall speak to them on any subject connected with the trial." This statute does not intend that the view of the premises where a crime was committed shall be deemed part of the evidence, but intends that the view may be had for the purpose of enabling the jury to understand and apply the evidence placed before them, in the presence of the accused in open court. Deferring, for the present, the consideration of the authorities, and reasoning on principle, we shall have no difficulty in concluding that the statute does not intend that an inspection of a place where a crime was committed shall be taken as evidence. It cannot be seriously doubted that evidence can only be delivered to a jury in a criminal case in open court, and, unless there is a judge or judges present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection. This is so obvious that discussion could not make it more plain. The

jury are not, the statute commands, to be spoken to by any one save by the officer and the person appointed by the court, and they are forbidden. to speak upon the subject of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant or by his counsel if they were present, so that their presence could not benefit him in any way, nor their absence prejudice him. The statute expressly provides who shall accompany the jury, and this express provision implies that all others shall be excluded from that right or privilege. It is quite clear from these considerations that the statute does not intend that the defendant or the judge shall accompany the jury; and it is equally clear that the view obtained by the jury is not to be deemed evidence.

Turning to the authorities, we shall find our conclusion well supported. The statute of Kansas is substantially the same as ours, except that it does not, as ours does, require the consent of all of the parties; and in a strongly reasoned case it was held that it was not error to send the jury, unaccompanied by the defendant, to view the premises where a burglary had been committed. BREWER, J., by whom the opinion of the court was prepared, said, in speaking of the statute:

"Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems clearly to imply that only the jury and the officer in charge are to be present. The trial is not temporarily transferred from the court-house to the place of view. They are to be conducted in a body while thus absent. This means that the place of trial is unchanged, and that the jury, and the jury only, are temporarily removed therefrom. Just as when the case is finally submitted to the jury, and they retire for deliberation, there is simply a temporary removal of the jury. The place of trial is unchanged. And whether the jury retire to the next room, or are taken to a building many blocks away, the effect is the same. In contemplation of law the place of trial is not changed. The judge, the clerk, the officers, the records, the parties, and all that go to make up the organization of a court remain in the courtroom. State v. Adams, 20 Kan. 311.

The keenest scrutiny will disclose no infirmity in this reasoning, and it is in close agreement with that of our own court.

In the Jeffersonville, etc., R. R. v. Bowen, 40 Ind. 545, this court overruled the case of Evansville, etc., Co. v. Cochran, 10 Ind. 560, and adopted the views of the supreme court of Iowa expressed in Close v. Samm, 27 Iowa, 503. That court, in speaking of a statute similar to ours, said:

"It seems to us that it was to enable the jury, by a view of the premises or place, better to understand the evidence and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party.

The doctrine of Close v. Samm was again expressly approved in Heady v. Vevay, etc., Co., 52 Ind. 117, and it was said: "It results that the impression made upon the minds of the jury does not constitute a part of the evidence in the cause:"

The case of Jeffersonville, etc., R. R. v. Bowen was approved in Gagg v. Vetter, 41 Ind. 228, and in City of Indianapolis v. Scott, 72 Ind. 196. In the case last cited it was said: "Perhaps, strictly speaking, the jury had

no right to do anything more than to view the premises, thereby to enable them to better apply the evidence upon the trial."

Counsel refer us to Carroll v. State, 5 Neb. 1, where a different view is taken, but we cannot yield assent to that decision. It is not a carefully considered case, not a single authority is cited, and there is no reasoning in support of the conclusion reached. The court there quote the statute, and say: "This should be done in the presence of the prisoner, unless he decline the privilege, as he is entitled to have all the evidence received by the jury taken in his presence." Nothing more is said upon the subject, and the entire question is thus summarily disposed of. If our decisions are correct in holding that the view of the premises taken by the jury does not constitute evidence, that of the learned court from whose decision we have quoted must be wrong.

In our investigation we have found two other cases which deserve a brief notice. In State v. Bertin, 24 La. Ann. 46, the jury were permitted to inspect the place where a burglary had been committed, and a witness for the prosecution was directed to accompany them, and point out to them places marked on a diagram, and this was held to be error. We need only say of that case that the permission given a witness to explain a diagram to the jury was permission to give evidence in the absence of the accused, and that there was not in Louisiana any statute allowing a jury to make an inspection. These two characteristics plainly mark the difference between that case and this. The case of Benton v. State, 30 Ark. 348, is not so easily disposed of, but we think that it falls into the same error as the court did in Carroll v. State, of regarding the inspection of the jury as evidence. If it is not evidence, and so our cases declare, the ground falls away from the assumption upon which the whole argument of the case rests, and we concur with the court in State v. Adams in declining to assent to it. Benton v. State is, however, addressed to the constitutional phase of the subject, of which we shall hereafter speak, and does not consider the effect of such a statute as ours. therefore, be deemed an authority upon the construction and effect of the statute, since it does not profess to discuss that subject. Mr. Wharton, in a single sentence, disposes of the question, citing the case of State v. Bertin, supra, and, of course, must be understood as referring to the procedure in jurisdictions where there is no statute regulating the subject. 3 Whart. Crim. Law, (7th Ed.) § 3160.

It cannot,

Thus far we have considered the question immediately under examination without reference to the important provision of our statute that the view can only be ordered upon "the consent of all the parties," as well as without reference to the important fact that the appellant himself requested that the jury be directed to view the premises where the homicide was committed. As the defendant asked the benefit of the provisions of the statute, he must take the benefit just as the statute gives it. In discussing, as we shall presently do, the constitutional phase of the question, we shall refer to authorities which fully sustain this proposition. The statute here under discussion grants a privilege upon condition that only the persons designated by the court shall accompany the

jury, and the defendant has no right to assail the action of the court in obeying the provisions of the statute which he himself invoked. The reasoning of the court in People v. Bonney, 19 Cal. 426, forcibly applies to the phase of the question which we are here discussing, as well as to other questions in the case. It was there said:

"The court had discretion to permit the jury to view these physical facts, and this was neither in contemplation of the act, nor otherwise, any part of the trial. It was rather a suspension of the trial, to enable the jury to view the ground, etc., that they might better understand the testimony. We do not see what good the presence of the prisoner would do, as he could neither ask nor answer any questions, nor in any way interfere with the acts, observations, or conclusions of the jury. If he had desired to see the ground, that he might be assisted in his defense by the knowledge thus obtained, possibly the court would have granted him the privilege; but the fact that the jury went upon the ground without being accompanied by him is no good reason for setting aside the verdict, especially as he neither made objection or asked permission to accompany at the time.

We come now to the constitutional phase of the question. We are to be governed by the provisions of our state constitution, and are not controlled by the federal constitution, for the reason that the procedure in trials for offenses against the laws of the state is not governed by the provisions of the national constitution except in cases where the states are named. This is settled law. Butler v. State, 97 Ind. 378; State v. Boswell, ante, 675, (this term,) and authorities cited.

The provision of the bill of rights conferring upon an accused the right to be confronted by the witnesses is not infringed by a statute which confers upon defendant a right to waive the privilege of being confronted in open court by the witnesses of the state. Two things concur in such a statute: the waiver by the accused, and the consent of the state that its citizens may make such a waiver. The rights secured by the constitution are fundamental, but they may, where the statute so provides, be waived by the accused. "These rights may be separated into two classes, namely, those in which the public generally, and as a community, is interested, as well as the individual to whom they happen directly to apply in any particular instance; and those, more in the nature of privileges, which are for the benefit of the individual alone, and do not in any way affect the general public whether he avails himself of them or not." "Waiver of Constitutional Rights in Criminal Cases," 6 Crim. Law. Mag. 182. The provision in the twelfth section of the bill of rights securing to one accused of crime the privilege of being confronted by the witnesses, belongs to the second of the two classes named, and is a privilege which may be waived.

In Boggs v. State, 8 Ind. 463, it was held that an objection that a deposition was taken without the consent of the accused was waived by a failure to make it in the trial court. The rule, as declared in the case of Butler v. State, 97 Ind. 378, is that a defendant who elects to take depositions under the statute concedes to the state a like privilege, thus waiving his constitutional privilege. This doctrine is firmly supported by the authorities. In addition to those cited in that case may be cited the following: Williams v. State, 61 Wis. 281; S. C. 21 N. W. Rep. 56; Wills v. State, 73 Ala. 362; State v. Wagner, 78 Mo. 644; Hancock v. State,