114 A. 102 | Conn. | 1921
The appeal raises a single point — error in the reference, by the State's Attorney in his argument to the jury, to the failure of the defense to produce evidence as to certain facts which were material in the case. Counsel for the accused seasonably excepted to the remarks as constituting comment upon the failure of Church (one of the accused) to testify in the case. The State's Attorney did not in this connection directly mention Church or his failure to testify in his own behalf. Monahan and Plummer, the other accused, testified as witnesses for the defense.
Our Declaration of Rights, in affirmance of the common law, provides that an accused "shall not be compelled to give evidence against himself." Conn. Const., Article
In the case before us the counsel for the accused seasonably objected because the remarks of the State's Attorney constituted comment upon the failure of Church to testify, and duly excepted. The better practice would have been to have moved for the discharge of the jury at the time of the comment, but since the ground of the objection was fairly stated, and the court had before it the exact claim of counsel, and the court, at the time, stated that it would cover the *292 matter in its charge, we think there is no basis for the claim that counsel waived the point by not following the most approved practice. The comment objected to was not comment upon the failure of the accused Church to testify. It neither directly referred to that fact, nor could an inference to that effect be fairly drawn from the comment. The comment was to the failure of the defense to produce evidence which was essential to the case of the accused. The statute prevents prejudice to an accused from his failure to testify; it does not prevent prejudice to his case from the failure to produce any evidence, or any sufficient evidence, to establish his case.
The State must establish the guilt of the accused as charged beyond a reasonable doubt. It has the right, in sustaining its burden, to point out in the argument the contradictions in the evidence, the failure to make explanation where such is reasonably to be expected, the failure to explain incriminating circumstances when such exist, the fact that the claims of the State stand uncontradicted or unexplained, or that the defense has introduced no affirmative evidence, or no adequate affirmative evidence. To deny the prosecution this right would prevent any fair analysis or proper discussion of the testimony. All fair and legitimate argument is open to the representative of the State. All the restriction which this statute imposes is the omission of all reference, directly or indirectly, to the failure of the accused to testify. The trial court should be alert to prevent violation of the statute by subterfuge or indirection, but it cannot find a violation of the statute in the argument of the State, fairly presented, that the essentials, or an essential, of the case stand uncontradicted, merely because this may suggest to the jury that the accused had it within his power to testify upon this point. The authorities sustaining *293
the views we express are numerous and in substantial harmony. Some of the instances in which comment by the prosecutor has been sustained are these: "Have they told us how she came by those bruises? . . . where she fell out of the wagon? Not a word, and yet how easy it was for them to have told us that."State v. Smokalem,
We reached a like conclusion in State v. Griswold,
Counsel for the accused liken the comment in this case to that in Wilson v. United States,
The court, in accordance with its statement when the comment was made, charged the jury upon this matter as follows: "An accused person is not obliged to take the witness stand in his own behalf. If he feels that the State has failed to overcome the legal presumption of innocence, or for any other reason he decides not to become a witness, no inference prejudicial to him can be drawn from such failure to testify. Comment upon such failure should not be made, and if made should be disregarded by the jury."
As a general statement this is correct; as a guide to the jury in their consideration of the particular comment before them it lacked definite application. The court might well have instructed the jury that the comment in question was free from criticism because it *295 did not violate the statute. Had it violated the statute, the court should have been pointedly explicit in telling the jury to disregard the comment. Upon such a subject a colorless charge without definite application does not meet the requirements of the situation. The court should at the very time of the comment make its ruling, and, if the comment be in derogation of this statute, the ruling should be so unequivocal as to discourage other like violations.
There is no error.
In this opinion the other judges concurred.