Hunt v. State

• Decision Date: 06 November 1889
• Citation: 12 S.W. 737
• Parties: HUNT <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 737

12 S.W. 737

HUNT

v. STATE.

Court of Appeals of Texas.

November 6, 1889.

Appeal from district court, Jones county; J. V. COCKRELL, Judge.

Davis & Woodruff, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

By the first section of the act of the legislature approved April 4, 1889, with regard to evidence in criminal actions, and repealing the fourth subdivision of article 730 of the Code of Criminal Procedure, it is provided that "hereafter any defendant in a criminal action shall be permitted to testify in his own behalf therein; but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause." Defendant's third bill of exceptions shows that in his closing argument the district attorney proceeded to comment on the failure of defendant to testify in this case, and proposed to, and attempted to, read to the jury the law, as we have above quoted it, empowering him to do so; and that, though he was stopped, and admonished from the bench that he had no right to read and comment upon said law, said attorney claimed he had such right. This bill of exceptions is qualified by the trial judge with the explanation that the "attorney for the defendant, alluding to what the witness Stevens had stated in reference to defendant's admissions, that [said?] `You have not yet heard the defendant's statements.' The district attorney, in his closing argument, stated that `it was the same old story. The defendant's mouth is closed,' — and picked up the acts of the last legislature, and commenced to read the act allowing a defendant to testify, when the court called him to order of his [its] own motion, and [he] was told by the court that he could not read that law in the hearing of the jury; when, in answer to the admonition of the court, [said prosecuting attorney?] wanted to know `if the court would allow defendant's counsel to sing that same old song, and not allow the state to reply.' When the court told him that he could neither read nor comment on the law referred to." The language of our statute prohibits any allusion to, as well as comment on, a defendant's failure to testify in his own behalf. No argument made by defendant's counsel could or would justify the prosecuting attorney in alluding to or commenting upon the fact, in violation of the plain letter of the law. Upon a statute substantially in effect with ours, the supreme court of...