Prince v. StatePrince v. State
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
The record discloses that assistant prosecuting counsel for the-stаte, in commenting on the alleged confession made by the defendant to Will Jones, said, “Gentlemen of thе 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 objеction 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 intеntion 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 thаt the effect of the observation was to-directly call to the attention of the jury this failure on the рart of the defendant to testify, since no one could have contradicted the fact that the сonfession 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 еmphatic 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,
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 casе 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 fаiled 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 counsеl.” 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 сourt 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, thе 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 сall 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 faсt, without any sort of doubt, operates against the party so failing 1o-testify, and will always do so whilst human nature rеmains 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
Reversed and remanded.