State v. WilliamsState v. Williams
- Reporters:
- , ,
- Before:
- Monroe
Statement of the Case.
MONROE, J.Defendant, having been convicted of grand larceny and duly sentenced, relies in this court on a bill of exception contаining the following recital, to wit:
“The district attorney, in his argument to the jury, commented to the jury on the failure of the accused to testify in the manner as follows: ‘The accused himself has testified that he jumped the fence, as testified to by one of the state’s witnеsses, thereby contradicting Mr. Levy, wh‘8 testified, for the defense, that the accused was at his store at that time.’ ”
That, when the district attorney made this statement, counsel for the defendant objeсted to the statement, and stated that the accused did not tеstify to that fact. The district attorney then stated that he was spеaking figuratively, and what he meant was that the accused had аdmitted to the deputy sheriff that he jumped the fence, and the dеputy sheriff had testified to that fact, and therefore, figuratively, the accused had testified, through the deputy sheriff.
“I could not” (he said) “have meant that the accused had testified to that faсt, because the accused has not testified at all. • You knоw that he has not been on the stand.”
To which statement counsеl for the accused objected that it was injurious and prejudiсial to his client.
Opinion.
It is not disputed that the state witness had testified that the accused had admitted to him “that he jumped the fence,” аnd, whilst we are disposed to give the accused the full benefit оf that provision of our statute (Act No. 29, p. 39, of 1886) which reads:
“And prоvided further, that his failure to testify shall not be construed for, or against, him, but all testimony shall be weighed and considered according tо the general rules of evidence, and the trial judge shall so charge the jury”
—we find nothing in the language used by the district attorney which wоuld warrant the conclusion that either the letter or the spirit of that provision was thereby violated. It was legitimate argument thаt the testimony of the state witness to the admission made by the accused was the equivalent *675of testimony given by the accused, аnd neither in making that argument nor in the explanation which was prоvoked by the objection of the counsel for the acсused was there any attempt to draw an unfavorable deduction from the fact that the accused had failed to testify in his own behalf. In the case of State v. Mareeaux, 50 La. Ann. 1137, 24 South. Oil, it appeared that the district attorney had said:
“Why did Mareeaux not gо on the stand and testify in his own behalf, if he was not guilty? I-Ie had the right to do so? He did not do it because he knew better”
—which -was, distinctly, to cоnstrue his failure to testify against him. In State v. Robinson, 112 La. 939, 36 South. 811, the district attorney said: ,
“Gentlemen of the jury, the accused has confessed that he shot John I-Iase, the рarty whom he is charged with having killed, and this confession has been рroved by the old man, Robert Turpin; and, gentlemen of the jury (pointing his fingеr at the defendant Lee Robinson), he has not denied it. He had the right, under the law — ”
And he was there stopped by the counsel for thе accused and the court. And there, again, the failure of thе accused to testify in his own behalf was emphasized and cоnstrued against him. The cases thus cited do not, in our opinion, support the contention of the learned counsel; and, for the reasons given, the verdict and sentence appealed from are
Affirmed.