The opinion
JOHNSON, Judge,
specially concurs.
While I agree wholeheartedly with the opinion of the learned Judge Parks and agree that this case must be reversed and remanded, I feel a duty to speak to the bench and the bar about the problem involved.
Judicial economy is not an excuse for the violation of a defendant’s rights of due process under the Okla. Const, art. 2, § 7, nor a violation of the Constitution of the United States and the due process clause contained in the Fourteenth Amendment.
From the transcripts, it appears that the motion for severance came on at a motion docket along with numerous other criminal matters. At this particular point in time, the court is correct in that the statements and facts presented to the trial court were not enough to warrant a severance. One of the attorneys involved did not even file a motion for a severance. It is the duty of the defense attorneys to adequately notify the court of antagonistic defenses and file the proper motions requesting severance. It is also the duty of the bench when the trial judge has reason to believe that such defenses may arise to ask the proper questions and to make sure that the record is adequate to show the need for a severance. In this particular case, neither of these were accomplished by either the bench or the bar. In the event that the defendant’s attorneys do not want to divulge defenses or trial strategy, they certainly could have asked for an ex parte in-camera hearing which the court could have granted solely for that purpose, that is, to determine the necessity for a severance: The court has the power to communicate separately with each defense attorney so that the court would be prepared to make a proper decision. Obviously, these hearings should be on the record and not in chambers without a record.
Presiding Judge Lane has so eloquently stated at a hearing, “it certainly is not judicial economy to try a case three times when it could have been tried twice, thereby saving the State, witnesses and even this Court the problems of a reversal.”