Yarbrough v. State

Woods, J.,

delivered the opinion of the court.

In his argument of the case before the jury, one of the attorneys for the prosecution used this language, viz.: “Defendant has not taken the stand, which is his privilege under the law, and no inference can be drawn from the fact — ,” when the court interrupted counsel, and directed him not to make any comment. The counsel then resumed his address, and said: “ Unfortunately for the defendant, he has not, in this case, for he has immolated himself on an altar of his own erection.” This failure of counsel for the state to heed the presiding judge’s admonition, and his persistent disregard of a plain requirement of law, must reverse this case, and secure to the appellant a new trial.

The statute declares that “ the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.” The word “comment,” as employed in the statute, does not mean to criticise or condemn or anathematize the accused on his failure to testify. It forbids, in unmistakable language, any comment, friendly or unfriendly. It forbids any remark, of any character, in any words, upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel.

In this case, comment was made; criticism was indulged. The failure of the accused to testify was pointed out to the jury, and, on admonition from the court that the counsel was on forbidden ground, counsel proceeded to inform the jury that the failure to'testify by the defendant was unfortunate for him, “for,” said the counsel, giving a reason for declaring the accused’s course unfortunate, “ he has immolated himself upon an altar of his own erection.” '

But, quite independently of the character of the comment, the statute forbids the comment itself. The failure of the *595 •accused to testify shall not operate to his prejudice, nor shall it be commented upon, remarked upon at all, by counsel. Comment was made — unfriendly comment, too — and prejudice may have been made operative against the accused, and so he has not had the trial ,to which he was entitled under the law.

Rote. — After the decision of this case, and after the expiration of the term of court, upon a corrected transcript being furnished, it was discovered that, in copying the bill of exceptions, the words “been silent ” following the words “has not,” in the last sentence quoted by the court as the language of counsel, were inadvertently omitted. Owing to this omission, it would appear from the record that, after being admonished by the court, counsel persisted, and, in effect, said: “Unfortunately for the defendant, he has not testified in this case;” whereas, what he did say, as now appears, was this: “ Unfortunately for the defendant, he has not been silent in this case, for he has immolated himself on an altar of his own erection,” referring, evidently, to certain confessions alleged to have been made by the defendant. This explanation is made by-direction of the court, in justice to counsel. — Reporter. • Reversed and remanded.