Woods, J.,
delivered the opinion of the court.
The remark of counsel for the state, in his opening argument, addressed to the jury, was regarded by the intelligent and able *1011counsel for the accused, and by the learned judge who presided on the trial, as a comment upon the failure of the prisoner to testify. The counsel for the state himself admits that, referring to the alleged admission made by the prisoner to the state’s witness,-Swaysse, he used this language, viz.: “And he has not denied it. ’ ’ He further admits that, when the prisoner’s counsel interrupted him, suggesting the impropriety of this comment, he corrected himself, and said: “ It has not been denied. ” The counsel making the comment, on hearing of the motion for a new trial, testified that it was not his intention to refer to the fact that the defendant failed to take the stand in his own behalf; but his intention iras immaterial, if, in fact, he used such language as could be reasonably construed to be a comment, and an unfriendly one, too, upon the failure of the accused to testify. The court below so construed the remark. We so construe it, and the jury, without doubt, so understood it. It is true that, immediately on the prisoner’s counsel excepting to the language of the counsel for the state, the court instructed the jury that the district attorney was prohibited from commenting on the defendant’s failure to take the stand on his own behalf, and that the jury must not consider any such comment. But this action of the court could not, and did not, undo the wrong already done. The statute forbids absolutely any comment on the failure of the accused to testify, and it is the right of every person charged with crime to insist that he enjoy this statutory immunity from criticism by hostile counsel, and the disregard of this plain statute, and the decision of this court upon it, by the state’s own counsel must reverse the judgment appealed from in this case. Code 181)2, § 174-1; Yarbrough v. State, 70 Miss., 593" court="Miss." date_filed="1893-03-15" href="https://app.midpage.ai/document/yarbrough-v-state-7987349?utm_source=webapp" opinion_id="7987349">70 Miss., 593.
The most extraordinary course adopted by the counsel for the state in the introduction of evidence, fairly entitled the accused, at one stage of the proceedings, to a peremptory charge to the jury to retui’n a verdict of not guilty. When the state first declared that it rested, it cannot be contended that any ease had been then made out against the prisoner. *1012No jury either could or would have convicted, and no judge, if such a jury could be found, would have permitted such a conviction to stand for a moment. Why the state rested its case, at first, without introducing Swayze, its chief witness, we are at a loss to conjecture; but whatever the reason for its action, the course pursued in resting its case when unproved, and after-wards, under the pretense of putting in evidence in rebuttal, introducing its chief witness, Swayze, not to rebut, but to then make out its case against the prisoner for the first time, was so unprecedented, so irregular and so unfair as to merit condemnation. If the state’s counsel undertakes to experiment with the court, or with the prisoner by refusing to introduce its material evidence before resting, and the experiment shall prove disappointing, the counsel should be held to the line of experimentation he has chosen. When the state rested without introducing the witness, Swayze, the court should have entertained the motion of the counsel for the prisoner to exclude the evidence in, and for judgment of acquittal; and the witness, Swayze, should not have been permitted to make the evidence chiefly, not to say only, relied upon to make out the prisoner’s guilt, at the very conclusion of the trial, under the pretense that it was in rebuttal.
We find no error in the action of the court in either giving or refusing instructions, but for the errors before referred to the judgment will be reversed and the cause remanded for another trial.
Reversed.