¶1dissenting. Defendants contend that the appointment of only one attorney to represent two defendants who are jointly indicted and jointly tried deprives them of certain rights, and, in effect, places the attorney in an inconsistent position with a possible conflict of interest. They contend that under their right to be represented by counsel, each was entitled to separate counsel.
¶2Prior to 1971, defendants who were jointly tried had an absolute right to severance, and under the terms of the existing statute, Code § 27-2101, when tried separately, they could testify for or against each other.
¶3But this statute was amended in 1971, and again in 1972 (Ga. L. 1971, pp. 891, 892; 1972, pp. 618, 619) and now, when indicted for a capital felony, where the state waives the death penalty, and in all cases less than capital, two or more defendants may be tried together in the discretion of the trial court. And a most important provision of the new statute is found in this language: . . in any event either defendant may testify for the other or on behalf of the State.” We repeat, that prior to 1971, defendants jointly indicted could testify for or against each other only when separately tried.
¶4It is not right or proper to appoint one attorney to represent two defendants who are jointly indicted and jointly tried. When appointed counsel investigates the case, and determines that one defendant can give valuable testimony on behalf of his co-defendant, although such testimony will help to convict the defendant so testifying, what is the attorney to do? Which client will he elect to save and which shall he throw to the wolves? Or shall he "lay low” — not use the testimony — hope for the best — and perhaps cause the conviction of both clients? It is all too obvious that the trial judge subjects appointed counsel to a possible conflict of interest — and places him in an embarrassing and untenable position — by requiring him to represent two joint defendants who are jointly tried under the present law. All attorneys are officers of the court and are responsible to the court, and must represent indigent clients when appointed. But they should not be imposed on by the trial judge by his appointment of one lawyer to represent *804two defendants who are jointly tried.
¶5Nor is the defendant accorded his constitutional right of being represented by counsel when his lawyer must be shared with another defendant, and when such counsel may have to decide to sacrifice John Doe in order to save Richard Roe.
¶6Of course, there are times when several defendants voluntarily employ one lawyer to represent them, but that is a matter of their own doing, whereas here we are dealing with an indigent client who is the ward of the court, and is entitled to have his rights fully accorded and protected by the court.
¶7The Miranda and Escobedo decisions by the United States Supreme Court were so liberal in favor of defendants prior to and during the arrest and commitment hearing, that a wave of resentment built up among the law-enforcing agencies in the several states. One of the results has been the concern by the General Assembly of Georgia with judicial reform, especially as to criminal law. Much of this new legislation takes valuable rights away from defendants and places the advantages with the state. Among these enactments is the law now under discussion, to wit: right of the trial judge to deny jointly indicted defendants the right of severance, and to require that defendants jointly indicted be jointly tried. Other legislation in this category is that which allows the trial of misdemeanor cases without grand jury indictment; allowing the trial jury to disperse during the trial of a case; allowing the state to appeal certain rulings in criminal cases; doing away with a defendant’s unsworn statement to the jury; and where defendants are jointly tried, the jury strikes may be apportioned between all defendants.
¶8Other legislation now on the agenda, and which will be proposed in the near future, includes the striking of venue requirements from the Constitution; reducing the number of jurors from twelve to six; and allowing the trial judge, instead of the jury, to sentence a defendant.
¶9It is not my purpose to commend or criticize the foregoing legislation, but suffice to say that the trend in Georgia at this time is to take away rights that defendants in criminal cases have had for more than a hundred years.
¶10In the present cases, I dissent from the majority opinion, and would reverse the trial court, because I do not believe the two defendants were fully accorded their right to counsel, when they had to share the one appointed counsel with each other.