GOLD, J.

This is a motion on behalf of the defendant Gaskill, on the one hand, and the defendant Waite, on the other, for a separate trial.

This motion is directed to the court because of the provisions of section 391 of the Code of Criminal Procedure, which provides as follows: "Defendants, jointly indicted, may be tried separately or jointly in the discretion of the court."

The indictment states that the alleged offense was committed on December 10, 1925. This indictment was found by the grand jury in September, 1926. Approximately one year and eight months have elapsed since the finding of the indictment.

I do not know the reasons advanced for the delays in the trials or at whose request they were granted. It is true, however, that the defendants could have secured a speedy trial, had they so elected and urged. The Sixth Amendment to the Constitution of the United States, among other things, provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."

The whereabouts of the defendant Gaskill was unknown for a considerable period. During that time the defendant Waite could have insisted on a speedy trial, in which event he would have been tried alone. He could then have secured the very relief which he is now seeking of the court. Because of his delay, he must now address himself to the discretion of the court.

It has been urged by the district attorney that a separate trial will cause further delay and added expense to the county. While this seems of importance to the People, it should not be the deciding factor in determining this motion.

Are there circumstances or facts which would make it unfair to try the defendants together? That should be and is the controlling factor. After listening to the arguments of the counsel for each defendant and to the district attorney, and after due deliberation, I am convinced that the defendants can and will have a fair trial if tried together.

It is the duty of the court to properly instruct the jury with reference to the testimony affecting each defendant, and to see that the rights of each defendant are properly safeguarded. This the court will do to the utmost of his ability. With this in mind, I do not see how any harm can come to either defendant by trying the defendants together.

It is also urged that the selection of jurors under section 360 of the Code of Criminal Procedure will be prejudicial to the rights of the defendants. The said section provides as follows: "When several defendants are tried together they cannot sever their challenges, but must join therein."

The Legislature of the State of New York is responsible for that law. It is not for this court to pass upon its merit or demerit. This court must accept it as the law of this State. If this law is unfair to these defendants, it is also unfair to all defendants in all the courts of this State where defendants are tried together.

Having already concluded that these defendants can have a fair and impartial trial together, under the proper instructions of the court, this court does not deem the second objection of sufficient importance to cause it to change its attitude.

The motion is, therefore, denied.