#### STATE v. GEORGE KIRKLAND and JAMES WILSON.

(Filed 22 December, 1917.)

1. Actions — Severance—Conspiracy—Courts—Discretion—Criminal Law.

Upon tbe trial of two defendants, one for assault and tbe other for conspiracy therein, the question of severing the actions upon defendant’s motion is one addressed to the discretion of the trial judge and his refusal is not appealable in the absence of abuse of his discretion.

2. Criminal Law — Conspiracy—Evidence—Admissions—Instructions.

Upon trial for an assault and conspiracy, admissions of each of the defendants are competent against the one making them, though not made *771in til© presence of tlie others, it being required that the trial judge by-proper instructions and admonitions to the jury protect the rights of each defendant by confining the declarations to the proper parties.

3. Instructions — Courts—Expression of Opinion.

Reversible error will not be found for expression of opinion on the evidence by the trial judge, when he refers to certain evidence as a fact as testified to by a witness and so fully understood by the jury, and not as a statement made by the court that such evidence had been established as a fact.

INdiotmeNt, tried before Shaw, J., at August Term, 1917, of Macon.

Tbe defendant Kirkland was convicted of a secret assault with a deadly weapon upon R. L. Barnett, with intent to kill. The defendant Wilson was convicted of conspiring with Kirkland to commit said assault. James Taylor was charged in same bill and was convicted of an attempt to commit the crime of accessory after the fact. Kirkland and Wilson were sentenced to six years in State’s Prison at hard labor and from such judgment appealed to the Supreme Court.

As to James Taylor, prayer for judgment was continued until the succeeding term of the Superior Court.

Attorney-General Manning and Assistant Attorney-General Sykes for the State.

J. Frank Ray, H. G. Robertson, and Sisk & West-for defendants.

Bkown, J.

The defendants Kirkland and Wilson in apt time moved the court to grant a severance. This motion was denied. It was renewed at close of State’.s evidence and again renewed at close of all the evidence and denied. Defendants duly excepted.

The grounds for such application are that much of the evidence was competent as against one defendant and not competent against the other and that “although the court charged the jury that much of this was not evidence against Kirkland, or not evidence against Wilson, yet it had its weight, with the jury and the defendants seriously insist that the court should have ordered a severance so that the cases might be tried upon the proper testimony as against each defendant.”

It has been frequently held that a motion for a separate trial of defendants charged in the same bill of indictment is a matter that must necessarily be left to the sound discretion of the trial judge. To undertake to review such rulings is impracticable and would result in great delay in the disposition of criminal actions. It is only when there appears to have been an abuse of such discretion that this Court will entertain such exceptions and review the rulings of the trial judge. Nothing of that nature appears in this record. S. v. Dixon, 78 N. C., 558; *772 S. v. Parrish, 104 N. C., 689; S. v. Hastings, 86 N. C., 597; S. v. Haney, 19 N. C., 390; S. v. Murphy, 84 N. C., 742.

Tbe defendant Kirkland objected to tbe admission of tbe declaration of Tames Wilson, bis codefendant, to witness Barnett that about a week previous to tbe shooting tbe defendant Wilson came to bim and told bim that Jim Nelson was laying a plan to sboot witness. There are a number of other exceptions in tbe record to declarations of Kirkland and Wilson upon same ground.

Tbe court carefully instructed tbe jury that such declarations are evidence only against tbe defendant who made them. Tbe individual declarations of defendants tried together are competent as against tbe defendant making them, although tbe other defendants be not present when made.

Tbe judge should carefully instruct tbe jury, as was done in.this case, that they must disregard such declarations as to tbe defendants who were not present when they were made, and that they are competent only against tbe person making them. S. v. Collins, 121 N. C., 667; S. v. Cobb, 164 N. C., 418.

If tbe declarations of a defendant could not be taken as evidence against bim because be is indicted and tried with others, it would be impossible to try persons together who are charged with a common offense. This would greatly clog tbe wheels of justice. It is true that declarations by one defendant, competent only against bim, may tend to show bis codefendant’s guilt, but that is no ground for excluding them in a joint trial. S. v. Brite, 73 N. C., 26.

Tbe judges always endeavor to protect' tbe rights of each defendant by proper instructions and admonitions to tbe jury, and it is reversible error if be fails to do so.

There are other exceptions to tbe evidence, all of which we have examined, and think that they are without merit and that it' is needless to discuss them. Tbe assignments of error directed to tbe charge cannot be sustained. We find nothing in it that can reasonably be construed into an expression of opinion as to whether a material fact is proven. In referring to tbe conversation between Ledford and defendant Wilson, we do not think that tbe language of tbe judge is open to that criticism. He evidently referred to tbe conversation as a fact testified to by tbe witness.

We do not think tbe jury could reasonably have misunderstood tbe matter. They fully understood that it was their exclusive prerogative to determine whether such conversation ever took place.

Tbe charge in full is set out in tbe record and appears to be a very clear, full, and impartial presentation of the case to the jury.

Upon a review of tbe whole record, we find

No error.