89 Tenn. 231 | Tenn. | 1890
The appellant in error lias been convicted of manslaughter. He did not testify as a witness in his own behalf. The attorney representing the State, in his argument to the jury, commented upon certain threats testified to as having been made by the deceased in the presence and hearing of the 'defendant, by saying that “Mr. Henderson argued that Staples heard the threat that he (Hall) ‘ would cut his throat before sundown.’ Now, he never heard it. If he did, little Sam did not tell you so, and Staples himself did not tell you so.” “ Now Mr.' Staples, the defendant, could tell you, if he could speak, that the blow he got did not hurt him.” “He [Staples] does not tell yo.u that he did that stabbing in self-defense.” It is not distinctly stated in the bill of exceptions that this language was at the time excepted to, but the Circuit Judge, in the bill of exceptions, annexes an explanation in these words: “ The language of counsel for the State seemed to the Court subject to different constructions, and, not understanding with certainty that he should be understood as referring to the fact that defendant had not testified, no interruption was had.” From this we infer that defendant’s counsel did object, and that his objection was ovenuiled for the reason stated above. This was error. The Act of 1887, Ch. 79, permits the defendant in a criminal trial,, “ at his own request, but not othei’wise,” to testify as a witness therein. The Act further provides “that the failure of the parties defendant to make
An argument based upon the failure of the de-“ fendant to testify cannot but be most prejudicial
Eor this error the judgment will be reversed and the case remanded for a new trial.