Garrett v. Rhea, Adm'r. TRIAL of the right of property. An execution issued from the County Court of Cherokee, in favor of William Holloway, administrator of Charles Holloway, against Warren Washington, and came to the hands of the sheriff of Benton, by whom it was levied on a slave, and a claim interposed by plaintiff in error. The sheriff returned the original execution to the Court from which it issued, and returned a copy to the Circuit Court of Benton, upon which he indorsed the levy, &c., with a certificate, as follows: "I, Robert S. Porter, sheriff of Benton county, do hereby return this execution to the County Court of Cherokee county, with this my indorsement on the same; and the bond given and affidavit made in this behalf, for the purpose of the trial of the right of property, I have returned to the Circuit Court of Benton county, to be holden on the 4th Monday after the 4th Monday in September next, all of which I certify, this the 12th day of July, 1844. R. S. PORTER, Sheriff of Benton county. I, Robert S. Porter, sheriff of Benton county, do hereby certify, that the foregoing pages attached, and on this sheet, is a correct copy of the original execution issued out of the office of the clerk of the County Court of Cherokee, on the. 1st day of July, 1844, in favor of William Holloway, administrator, &c., of Charles Holloway, deceased, against Warren Washington, for the sum mentioned in said copy. Also, I do certify, that the foregoing return, made by me, on said original execution, returned to office, is correctly set out and copied all of which I do certify. Given under my hand and seal, this 12th day of July, A. D. 1844. R. S. PORTER, Sheriff of Benton county, Ala. The venue was changed to St. Clair county. Upon the trial in that court, the claimant objected to the reading of the copy of the execution, because it did not appear by the certificate of the clerk of Benton Circuit Court, that a copy of the original execution had been filed in his office-nor whether it was the copy of the original, as filed by the sheriff of Benton county-or whether it was a transcript of the record of the Circuit Court of Benton. The objection was overruled, and the papers read to the jury. The plaintiff then read the statement of a witness, agreed Garrett v. Rhea, Adm'r. to be received as evidence, that the sheriff of Benton received from the County Court of Cherokee, an execution, of which the one attached is a correct copy. That he levied the execution on a negro boy, named Tom, then in the possession of Warren Washington, and worth about $300, and that the return on the execution was correct. To the reading of this, the plaintiff objected, as not legal evidence of what it purported to prove, but the court permitted it to go to the jury for what it was worth, to which the claimant excepted and moved the court to charge the jury, that the testimony did not authorize them in finding a verdict for the plaintiff in execution, which was refused by the court, and claimant excepted. Judgment for plaintiff, and property condemned. Previous to the trial, Lewis Rhea, administrator de bonis non of Charles Holloway, was made a party to the suit, and the judgment rendered in his favor. These matters are assigned as error. T. D. CLARKE and RICE, for plaintiff in error, insisted, that there was nothing to show that the supposed copy was ever returned to the clerk's office of the Circuit Court of Benton, or that it was ever in the office. The clerk's certificate does not show that this was a part of the record of the cause. The agreed statement should have been excluded; it was not the best evidence of the fact. A. J. WALKER, Contra. ORMOND, J.—The 2d section of the act of 1828, Clay's Dig. 213, § 63, provides, that when property was levied on by virtue of an execution from another county, and a claim interposed to try the right, that the sheriff shall return the original to the county whence it came, with his return thereon, and make out a copy of the same, and his return thereon, and return the copy to the court of the county in which the levy was made; "and the copy of such execution shall be sufficient for the court to proceed on, and try the right of the property levied on." This the sheriff has done in this case, in strict conformity with the law. Hawkins v. The State. The copy, when thus returned by the sheriff, has the same effect as the original would have, in other cases, and his certificate is proof of all the facts contained in the copy so returned, precisely as in the case of an original execution. The fact that the venue was changed creates no difficulty. The copy there has the same effect as in the county from which it came. As it required no proof there to verify it, neither did it in St. Clair. By the change of venue, the clerk was required to send the original papers in the cause, and a transcript of the minutes and orders. He certifies that he has done so in this case, and this, with the other papers, was sent up. This is sufficient, prima facie. If other papers are alledged to have been substituted, it devolves on the party making the objection to establish it. This precise objection was made and answered in the State v. Greenwood, 5 Porter, 482. The statement introduced by consent, if not legal evidence, did not work any prejudice, as the same facts were established by the return of the sheriff, except the value of the slave levied on. The judgment in favor of the administrator de bonis non, is authorized by the statute, Clay's Dig. 227, § 30. Let the judgment be affirmed. HAWKINS v. THE STATE. 1. Where several persons are jointly indicted for a felony, they cannot claim Hawkins v. The State. lows the consideratum est, the latter recital, as it is not a necessary part of the judgment, may be rejected as surplusage. Writ of Error to the Circuit Court of Lowndes. The plaintiff in error was indicted, together with Reuben Harrison and Richard K. Harrison, for an assault and battery upon the body of Robert J. Lawrence, with intent to kill and murder, &c. R. K. Harrison, and Hawkins having pleaded "not guilty," were tried by a jury, who returned a verdict. of guilty, as to the latter, and acquitted the former; whereupon judgment was rendered accordingly, and Hawkins was adjudged to five years imprisonment in the penitentiary, and the payment of costs. On the trial, certain legal questions were reserved by bill of exceptions, which may be thus stated: 1. The defendants severally moved the court to allow them to be tried separately; but this motion was denied. 2. In empannelling the jury, the defendants refused to join in their challenges, and while empannelling the jury, a juror was called and put upon the defendants by the State, whom Hawkins was willing to accept, and desired to be sworn, but Harrison challenged him; thereupon Hawkins moved for a severance of the trial, and insisted that such was the operation of law, in such cases, but the court overruled the motion, and allowed the challenge by Harrison. J. E. BELSER and J. A. ELMORE, for the plaintiff in error, made the following points: 1. Each of the defendants below were entitled to fifteen peremptory challenges, and the State to ten, (Clay's Dig. 459, § 55;) and the practice has conformed to the law, even where several defendants are tried at the same time. 2. If several are charged in the same indictment, where the right to a peremptory challenge of jurors does exist, each has a right to a separate trial. [1 Peters' C. C. Rep. 118; 4 Johns. Rep. 296; 4 State Trials, 566; Foster's C. Law, 106; see cases cited in U. S. Dig. 359, $37.] Many of the English cases assert the reverse, but they have been decided in reference to the power of the crown. [1 Plow. Rep. 100; 9 State Trials 11.] The mode Hawkins v, The State. of summoning juries, the number of jurors to be summoned, and the power of sheriffs in such cases, is materially different. [4 Mason's Rep. 170; Clay's Dig. 455, 27; 456 $ 32.] The American cases which deny rhe right of severance, are founded upon the common law. [2 Dall. Rep. 535; 12 Wheat. Rep. 480.] 3. By no form of trial can each of the defendants, where there are several, be deprived of the number of challenges which the law gives him. [6 Ohio. Rep. 87.] 4. The trial of joint defendants should be so ordered, that the regular panel for the week, or term, should, if practicable, furnish juries to try them, without resorting to by-standers-this can only be done by ordering separate trials. [Clay's Dig. 455, $ 27; 456, § 32; 459, § 53.] 5. The law is exceedingly liberal in permitting parties charged with criminal offences to challenge jurors. [1 Eng. Cr. Cases, 224; 2 Leach's Cases, 621; 3 Camp. Rep. 208, 4 Taunt. Rep. 309.] 6. The judgment on the verdict of the jury does not authorize the infliction of imprisonment in the penitentiary; it affirms that the defendant is "guilty of an assault with intent to kill." ATTORNEY GENERAL, for the State, insisted-1. It was clearly a matter of discretion with the court, under all the circumstances, to allow or refuse a separate trial. [Marchant's case, 4 Mason's Rep. 158; same case, 12 Wheat. R. 480; Bixbe case, 6 Ohio Rep. 86; 2 Hawk. b. 2 ch. 41, § 8.] 2. Each defendant being allowed the full number of challenges guarantied by the statute, neither can complain. The object of allowing challenges is not that the prisoner may select his jury, but that he may object to those who are prejudiced against him-being tried by a jury to which he does not object, he cannot complain. [State v. Marshall, 8 Ala. 302, and cases there cited; 6 Ohio Rep. 86; 12 Wheat. R. 480.] 3. The course pursued by the Judge, in directing the jurors challenged to stand aside, was correct. If a juror is objected to by one, he must be withdrawn as to all. [See 1 Plow. 100; 2 Hawk. 563; 2 Hale, 263, aud cases before cited.] 4. The right to separate trials is not the consequence of allowing separate challenges. But if the prisoners claim their |