Prince v. State

Whitfield, C. J.,

delivered the opinion of the court.

The first instruction given for the state is, on the whole of this case, manifestly erroneous. There is no evidence whatever in this record of any attempt to commit burglary on the part of the appellant. That instruction is in these words: “The court instructs the jury that if they believe from the evidence, beyond every reasonable doubt arising out of the evidence, that the de *266 fendant shot, and killed the deceased, William McAllister, while he, the defendant, was in an attempt to commit burglary, then the jury will find the defendant guilty of murder.” We would not, however, reverse for this error alone, since the jury could not have been misled by this instruction, so entirely foreign to-the merits of the controversy.

The record discloses that assistant prosecuting counsel for the-state, in commenting on the alleged confession made by the defendant to Will Jones, said, “Gentlemen of the jury, he confessed the killing of McAllister to Will Jones, and that confession stands uncontradicted before you today,” which remark was objected to immediately by counsel for defendant. The court' said: “The objection is sustained by the court, if counsel had reference to defendant’s failure to go on the stand.” Counsel here stated that he had not intended to refer to that. The court then instructed the jury that, if that was the intention of counsel, they would not consider it. Learned counsel assisting in-the prosecution disclaimed any intention to refer to the failure of the defendant to testify; but, accepting this disclaimer, it must still remain true that the effect of the observation was to-directly call to the attention of the jury this failure on the part of the defendant to testify, since no one could have contradicted the fact that the confession was made except the defendant, inasmuch as the record shows that no one was present when the defendant confessed to Will Jones.

This court has several times, in the most positive and emphatic way, held that any sort of reference, of any character whatever,, to the failure of a defendant to testify, constitutes reversible error. See Yarbrough v. State, 70 Miss. 593 , 12 South. 551 , and especially Reddick v. State, 72 Miss. 1008 , 16 South. 490 , and Sanders v. State, 73 Miss. 444 , 18 South. 541 . The court held in the Reddick Case that it did not affect the result that the prosecuting attorney on his motion for a new trial testified that he did not intend to comment on the failure of accused to testify, but only meant that the testimony as to the admission was- *267 undisputed; that, having used such language as could be reasonably construed as a comment, his intention was immaterial.

Speaking for myself alone, I desire to say that I have never-regarded these decisions as sound. Followed in the literalness and strictness of their holding, this court would be compelled to reverse judgment for the state, in a murder case in which the-evidence showed overwhelmingly, beyond any reasonable doubt, a-case of cold-blooded assassination, without any defense whatever on the merits, merely because the defendant failed to testify and the counsel for the state commented on such failure. It is true the statute (Code 1892, § 1741,) provided, when these decisions were rendered,- as Code 1906, § 1918 does now, that “the failure-of the accused in any case to testify shall not operate to his prejudice or be commented on by counsel.” But I do not think this statute ought ever to have been construed as making every comment on such failure reversible error. The statute itself does not declare what the penalty for such comments shall be. The court might correct that evil by proper fine or other procedure. To hold, as we have held, that any comment whatever in any kind of case, no matter how atrocious, shall operate for a reversal, is to my mind illogical and not necessary-under the statute. When a defendant does fail to testify, the twelve men in the jury box know that fact; and they just as certainly draw an inference unfavorable to the defendant from his failure to testify as that two and two equal four. AVhen, therefore, counsel for the state call attention to the simple fact that a defendant has failed to testify, they have done nothing more than call the attention of the jury to a fact already perfectly within their knowledge, and which fact, without any sort of doubt, operates against the party so failing 1o-testify, and will always do so whilst human nature remains human nature. The statute itself might just as well have been entitled “An act to repeal the ordinary operation of human nature.”

We do not, however, feel authorized to overrulo these deci *268 sions, since they have so long been followed and acquiesced in, and establish, .at last, merely a rule in favor of defendants on trial; and I desire to add that in all I have said in criticism of this statute and these decisions I speak for myself alone, and not for my brethren. In my judgment the statute should be amended by the legislature, so. as to provide that comment on the failure of the accused to testify should not be made, but, if made, should never work a reversal, unless this court shall be thoroughly satisfied, on the review of the completed case, that it contributed materially to the result. In other words, such an error should be treated like all other errors in the course of a trial. If it contributed materially to the result, it should work a'reversal. If not, it should not be regarded as a reversible error.

Reversed and remanded.