Welch v. State
81 So. 2d 901
Ala.
1955
Check Treatment

*1 81 So.2d 901

Carl WELCH

STATE.

5 Div. 610.

May 12, 1955.

Rehearing Denied June Opelika, opposed. Maye,

McKee & MERRILL, Justice.

Title Section Code : follows indictments, the trial of all “On complaints, proceed- other criminal or shall, person at ings, the on trial his otherwise, request, but not be a own witness; competent request shall not create make such Gen., Atty. Sykes, F. Asst. Bernard him, against nor be presumption Gish, Gen., Jr., Atty. T. Paul Asst. subject by counsel.” of comment petition. question sole before us whether provisions of said section were vio- opinion by the occurrence stated lated quote: Appeals. We of the Court of testify the case nor defendant did any evidence introduce otherwise. *2 58 prose- phase the the tain State’s evidence jury the was- argument to “In his Certainly good ‘he a uncontradicted. the State’s that stated cuting officer attorney permitted should be to not offered com- defense had

case and the the character of the ment on evidence- evidence.’ by presented strength. the State and its “* * * prosecuting officer the when certain evidence is That uncontradicted! concern, the of instant the statement made strength. to show its Our tends statute- objection and stated: the court overruled abrogate right does not the of the- commenting directly that is think T don’t legiti- counsel to comment State’s on the did not tes- that defendant on the fact regard. mate inferences in this The- so, certainly thought would tify. If I prosecutor remarks of the here definite- ” your motion.’ sustain a direct reference were not to the- testify. failure to Nor un- defendant’s as in doubt to whether it was were (We der the facts of this case could it be- first or the defendant who trial court the only- that this defendant was the said question of the defendant’s injected the by signature witness which the of the- to the testify. went record to We failure questioned,, defendant could have been uncertainty it reveals clarify this to and that therefore the remarks of the- assigned that for defendant that counsel attorney necessarily be in- State’s interposed he his ob- specific ground when terpreted referring only to the de- jection.) testify.. fendant and his failure to that remark in the agree cannot the We experts Handwriting frequently are in a as to result reversal instant case is such developing used in evidence of this na- of the case. ture. in case of Coats In his dissent the v. nothing questioned' “We in the find 515, 257, 260, State, Ala.App. 60 36 So.2d removing general remark it the 406, 60 granted Ala. So.2d certiorari 257 by prosecutor that rule statements a to- 261, decision of the Court of wherein the the effect that evidence for the State is- reversed, Appeals the late lamented was undenied or uncontradicted does not Ap Judge Carr of the Court of Presiding prohibiting violate a statute comments: peals, following enunciated the we testify. on the defendant’s failure to statement of the law: is a correct think A vast number of cases from numerous- jurisdictions principle treating may- this a generally “It is held that statement be in excellent found an in annotation attorney the the to effect A.L.R., p. 68 We find no error in the evidence for the is uncon- that ruling in the court’s this instance.” or undenied is a comment tradicted testify.” on the defendant’s For annotation on defendant’s to> failure produce testimony see 68 A.L.R. 1139. examined the authorities We have cited they support following this statement and Also, proposition. in the case of Little the Furthermore, the trial court was in 507, State, Ala.App. 565, 63 field v. So.2d position situation, a to observe the the de certiorari denied solicitor, the meanor of the inflection of his- where the was convicted of attending all the voice and circumstances. county pre a obtaining warrant false experienced judge was an lawyer- trial tenses, bore and the warrant the endorse he bench,, before assumed his duties on the defendant, Ap the ment of the Court of shows fully and his statement that he under commenting peals, on the solicitor’s question presented the stood and that he- “ ‘Nobody to that denies statement certainly “would sustain the motion” if he- ”, signature Cleve Littlefield’

that’s amounted to thought commenting it on the- said: testify. the defendant did not We- attorney agreement remark of the State’s are with the trial court that neither a commentthat a cer- the statement was a direct no more than nor was a. de failure reference to covert be a rather it would testify, and to

fendant conclude otherwise. to construction

strained Broadway 257 Ala. *3 701; Washington v. 704. Appeals is the Court judgment of remanded. cause is

reversed and remanded.

Reversed LAWSON,

LIVINGSTON, J., and C. STAKELY, JJ., concur.

.SIMPSON

MAYFIELD, J., dissents.

MAYFIELD, (dissenting). Justice officer The chief doing indirection prohibited from directly. doing he is barred that the “de- the solicitor

'The statement effectively no evidence” offered fense has attention and focused

(cid:127)directed that the upon privilege constitutional exercised express- This incrimination. self .against this reason For statute. our forbidden respectfully dissent.

May PIKE AND TELEPHONE BELL

SOUTHERN COMPANY. TELEGRAPH Div. 470. 24, 1955.

March May 19,

Rehearing 1955. Denied Rehearing Denied June

Further

Gibson, Gibson, Birmingham, Hewitt & appellant. for