135 P. 1198 | Okla. Crim. App. | 1913
The plaintiff in error, Tave Teer, was convicted at the May, 1913, term of the county court of Murray county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of one hundred dollars. The appeal was perfected in this court on June 30, 1913. The Attorney General has requested the advancement of this cause for immediate determination and filed a confession of error, and advises the court that in his judgment the conviction had in the lower court should be reversed on account of misconduct on the part of the county attorney during the trial. It appears by the record that the plaintiff in error did not testify during the trial; that he was seated in the court room near the entrance and had been pointed out by witnesses. During the argument the county attorney urged the jury to return a verdict of guilty, and, among other things, said: "I want you to return a verdict that a man cannot do like the defendant did and then sit back in the audience as a spectator and look the jury in the face." Counsel objected to this argument; the objections were overruled and exceptions saved. This proposition was raised by motion for a new trial and is assigned as error in this court. Section 5881, Revised Laws 1910, provides: "In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense, or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial." This particular section of the statute was the law in Oklahoma Territory prior to the admission of the state into the Union and was construed in the case of Wilson v. Territory,