Frazer v. State

• Citation: 34 N.E. 817, 135 Ind. 38
• Case Date: September 28, 1893
• Court: Supreme Court of Indiana

135 Ind. 38
34 N.E. 817

FRAZER
v.
STATE.

Supreme Court of Indiana.

Sept. 28, 1893.

Appeal from circuit court, Huntington county; J S. Dailey, Judge.

Theodore F. Frazer was convicted of burglary, and appeals. Affirmed.

C. W. Watkins, for appellant. W. A. Branyan, for the State.

COFFEY, J.

The appellant was indicted, tried, and convicted in the Huntington circuit court upon a charge of burglary and larceny. He appeals to this court, and assigns as error that the circuit court erred in overruling his motion for a new trial. We will consider the alleged errors of the court in the order in which they are treated by the appellant in his brief.

It appears from the record before us that the appellant, on the trial of the cause, did not testify in his own behalf. During the argument of the cause before the jury, the prosecutor used the following language: “Not a particle of evidence has come to you from the defendant, from his side of the case.” It is contended by the appellant that this language was a violation of clause 4, § 1798, Rev. St. 1881, which forbids comment on the fact that a defendant in a criminal case does not testify in his own behalf, but we think the point is not well taken. The statute was not intended to prohibit the prosecutor from arguing that the jury should return a verdict in accordance with the testimony of the state because it was uncontradicted. If the contention of the appellant were sustained, such argument, which is perfectly legitimate, would be cut off. It is true such argument may call to the mind of the jury the fact that the defendant did not testify in his own behalf, but it cannot be said to be a reference to, nor a comment upon, the fact that he did not so testify.

The burglary and larceny with which the appellant was charged and tried occurred on the night of the 7th of June, 1892. On that night the house of one Gusman was burglarized, and a gold watch and about $30 in money stolen therefrom. It was the theory of the state that the crime was committed by the appellant, one Manning, and others. In support of this theory, the prosecutor was permitted to prove that, when Manning was arrested, he had in his possession part of the stolen property, and that he fled from the officers, and attempted to avoid arrest. After proof that the appellant and Manning were seen frequently together both before and after the burglary, and that they were together on the evening preceding the night of the burglary, the state was permitted...