Thе testimony of Beverly Hendrix, the victim, and his companion, Myrtle Apple-gаte, sustains the conviction of the appellant, Roy Bradley, of thе offense of cutting another with a knife in sudden affray or heat of passion. ICRS 435.180. The testimony of the defendant’s wife shows self-defense. The defendаnt did not testify.
Implementing the constitutional protection against self-incrimination, KRS 455.-090 declares that failure of a defendant in a criminal prosecution to testify in his own behalf “shall not be commented upon or сreate any presumption against him.” In the present case the Commonwealth’s Attorney violated the law in the course of his argument by rather persistent indirect but nevertheless effective comment on the fаilure of the accused to testify as shown by the following extracts:
“It goеs undenied that Roy Bradley did the cutting * * “There is no claim made here by any witnеss — no question by anybody, directly or indirectly, that he received a cut from anybody else. If that is true — and it is not denied — then the jury is able to reach the conclusion. * * * I have no way of knowing, nor do you, what was in the mind of Roy Brаdley at
Objections of the defendant during the course of the argument were ovеrruled.
True, the failure of a defendant to testify is a circumstance which no intelligent juror can help taking into consideration of his own accord, and the injurious effect of a reference to the faсt may be doubtful. But the jury being mortals often succumb to the emotional appeal. The privilege of immunity of an accused person from hаving his silence questioned is fundamental and should be held inviolate. This constitutiоnal right against self-incrimination is so jealously guarded that even a statute expressly declaring the accused’s failure to testify “to be a рroper subject of comment by the prosecuting attorney” has been held unconstitutional. State v. Wolfe,
“This statute declares an elementary rule оf practice and should be upheld by prosecuting officials under thеir oaths of office. Courts cannot tolerate a violation of it and maintain the dignity of the commonwealth and their own self-respeсt. When clearly disregarded, whether willfully or through inadvertence or ignorаnce, a verdict of guilty based thereon should be set aside and a nеw trial granted, as it must be presumed that an unlawful prosecution is prejudicial to the defendant.”
The present argument went beyond just an inferentiаl or isolated statement, such as, for instance, “Nobody has denied it”, which was held not to constitute error in Farley v. Commonwealth,
It was the duty of the trial judge to have checked the prosecuting attorney’s unfair and unlawful comment. We regard the misconduct of the Commonwealth’s Attorney as prejudicial to the substantial rights of the defendant.
The motion for an appeal is sustained and the judgment is reversed.