64 S.W.2d 328 | Ark. | 1933
A jersey heifer had been stolen in Sebastian County, and the appellant was indicted, tried and convicted, on the charge of having received the same knowing it to have been stolen, and on appeal presents various assignments of error for reversal. In addition to the bill of exceptions certified by the presiding judge, appellant prepared in proper form a bystanders' bill of exceptions under the provisions of 1322 of Crawford
Moses' Digest. As the truth of the matters set out therein was not controverted by counter affidavits as provided in said section, these must be taken as true, although they conflict with the statements contained in the bill signed by the judge. Boone v. Holder,
At the trial the defendant did not testify, and exception is taken and assigned as error to that part of the argument of the prosecuting attorney to which objection was made as in effect a comment on the defendant's failure *134 to testify in his own defense. The language objected to appears in the bystanders' bill of exceptions and is as follows: "Take Carl Mortenson, the poor, little, freckled-face, stuttering kid, raised around here. Practically all of you know him. He would never have thought of this. He said so. It has never been denied. Perry said that: `If you have got any `hot stuff' over there, bring it over. I can use it.' By `hot stuff' he meant anything that Carl would steal. In fact, the defendant has not denied a single, solitary iota of evidence that has been given against him from the stand here today. There's the brains of this thing,' [pointing to defendant] Herman Perry."
The necessary effect of this language was to direct to the jury's attention the failure of the defendant to testify. This court, in Bridgeman v. State,
In overruling the objection made to the argument, the court said to the appellant's attorney: "You have opened the way. He is only arguing the point you raised." This action of the court and the reason given is sought to be justified by the rule announced in Collins v. State,
It was on the testimony of Carl Mortenson, the admitted thief, that the State chiefly relied to establish the charge that the animal stolen was in defendant's possession with the guilty knowledge of the commission of the larceny. Several persons had testified as to the repeated statements of this witness that defendant knew nothing about his having stolen the animal. In commenting on the action of Mortenson and the testimony of these witnesses, appellant's counsel in his argument to the jury, said: "What was Mortenson's story of this affair all the way through up to the time and sometime after he was placed in jail? He said that Perry did not know anything about it. He told Jim Efurd that Perry did not know anything about it. He told Jess Wilson in Perry's presence that Perry did not know anything about it. Perry told Jess Wilson, in Mortenson's presence, that he, Perry, did not know anything about it. About what? About the heifer having been stolen, of course. We say that Perry did not know anything about it, about the heifer having been stolen, and when you hear from Perry again he will still be saying that he did not know anything about it."
This is the statement which, it is claimed by the appellee, brings it within the rule announced in Collins v. State, supra. Here the statement of appellant's counsel and the language used is quite different from that used in the case of Collins v. State. Appellant's plea had put in issue the truth of the charge, and it was of itself a denial, and the statement just quoted, as we view it, can in no just or fair sense be interpreted as any reference *136 to the failure of the defendant to testify, or an attempt to justify that omission, as was done by defendant's counsel in Collie v. State, supra, but was a legitimate argument based on the evidence that Mortenson's testimony in the court was unworthy of belief, and that, although the animal was in appellant's possession, he knew nothing of its having been stolen. If the testimony of appellant's witnesses were true, this evidence justified the conclusion he reached which he sought to impress upon the jury and which he had a right to urge for their acceptance.
Learned counsel for the State contends that, even though the argument complained of was not invited and was prejudicial, that prejudice was removed because the court had instructed the jury to the effect that, while having the right to testify, defendant's failure to do so was not to be considered by the jury in determining his guilt or innocence. To sustain this position, we are referred to the cases of Ingram v. State,
Because of the statute, we must presume that prejudice resulted when not removed by prompt action of the court. As said in Bridgeman v. State, supra: "The Legislature has seen fit to pass the statute in question, and there seems to be no discretion with the court in passing upon the probable injury of such allusion. This being true, we have no alternative except to reverse the judgment."
Because the judgment must be reversed, it becomes unnecessary to notice the other alleged errors as they are not likely to occur again, and, since there must be a retrial of this case, we refrain from commenting on the weight and sufficiency of the evidence.
Reversed and remanded for a new trial.