
    (39 South. 971.)
    No. 15,783.
    STATE v. SIMON et al.
    (Dec. 4, 1905.)
    Criminal Law — Joint Defendants — Motion for Severance.
    A motion for severance on the ground that the defenses are antagonistic should specify wherein the defenses are antagonistic or be supported by oath or other proof.
    ’ (Syllabus by the Court.)
    Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.
    Joseph Simon and Zepherin Simon were convicted of crime, and Joseph Simon appeals.
    Affirmed.
    Rehearing denied January 2, 1906.
    
      Montgomery & Robira, for appellants. Walter Guión, Atty. Gen., and William Campbell, Dist. Atty. (Lewis Guión, of counsel), for tbe State.
   PROVOSTY, J.

Tbe two defendants were convicted of rape, were sentenced respectively to 10 and 12 years at bard labor, and Joseph Simon has appealed.

His sole complaint is that the following motion for a severance was overruled.

“Now comes Joseph Simon and moves the court for a severance, on the ground that his defense is entirely different and antagonistic with that of his codefendant, and that the said codefendant had made a confession implicating your said mover, and for that reason it is necessary that he be tried separately; his defense being different and distinct from that of his codefendant. That it will be impossible, unless a severance is granted, for him to get a fair and impartial trial, and thereby the ends of justice will be defeated.”

The judge says he overruled this motion because it was not sworn to or otherwise supported by any proof, and that as ,i matter of fact the two defenses proved to be the same — the consent of the ravished woman.

The first ground was sufficient. The facts stated in the motion should have been verified by oath. Enc. of Plead, and Prac. vol. 19, p. 528. The trial judge is not required to accept the mere statement of a motion as true, nor is he under the obligation of setting on foot an investigation into its verity.

Judgment affirmed.  