22 P. 429 (Kan. 1889), State v. Tennison

Citation:22 P. 429, 42 Kan. 330
Opinion Judge:CLOGSTON, C.:
Party Name:THE STATE OF KANSAS v. LUCY TENNISON
Attorney:H. L. Burgess, and I. O. Pickering, for appellant. L. B. Kellogg, attorney general, and J. W. Parker, county attorney, for The State.
Judge Panel:CLOGSTON, C. All the Justices concurring.
Case Date:October 05, 1889
Court:Supreme Court of Kansas
 
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Page 429

22 P. 429 (Kan. 1889)

42 Kan. 330

THE STATE OF KANSAS

v.

LUCY TENNISON

Supreme Court of Kansas

October 5, 1889

Appeal from Johnson District Court.

LUCY TENNISON was charged with the murder of her husband J. D. Tennison, by means of poison. She was tried at the January term, 1889, found guilty as charged, and sentenced for murder in the first degree. She appeals.

Judgment reversed.

H. L. Burgess, and I. O. Pickering, for appellant.

L. B. Kellogg, attorney general, and J. W. Parker, county attorney, for The State.

CLOGSTON, C. All the Justices concurring.

OPINION

[42 Kan. 331] CLOGSTON, C.:

The defendant was charged with the murder of her husband, J. D. Tennison, by means of poison, and was convicted of murder in the first degree upon that charge. Numerous errors are assigned in the record for reversal; but deeming the last one of the most importance, and of sufficient magnitude to require the reversal of the judgment, we shall not pass upon the other questions presented.

The defendant

Page 430

at the trial did not testify as a witness on her own behalf, and no confession of the commission of the offense charged was proven. John T. Burris, one of the counsel for the state, made the closing argument, and in the latter part of his argument used the following words: "The defendant is the only living person who knows the truth of the charge against her, and she has refused to divulge it. She says that she is innocent, and it devolves upon the state to prove her guilt by circumstantial evidence." To this statement counsel for the defendant at the time objected and excepted; and the court then said that no reference must be made to the defendant's failure to testify, and said to the jury that they had been instructed upon that point, and must not consider the same. Thereupon counsel Burris said that he [42 Kan. 332] had no "reference to that matter, but far from it," and proceeded with his argument. Defendant insists that this statement by counsel was in violation of § 215 of the criminal code, part of which section is as follows:

"And provided further, That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the...

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