Jordan v. State
| Citation | 16 S.W. 543 |
| Parties | JORDAN v. STATE. |
| Decision Date | 10 June 1891 |
| Court | Court of Appeals of Texas |
Swan & Swain, for appellant. R. H. Harrison, for the State.
By a bill of exceptions duly reserved the appellant shows that the county attorney in his opening argument said, in substance: Our statute provides "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 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." Gen. Laws 1887, p. 37. By the terms of this statute any and all allusion by counsel to a defendant's failure to testify in his own behalf is strictly prohibited. When a defendant does not testify in his own behalf this statute enjoins absolute silence on the subject in so far as the argument is concerned. Hunt v. State, 28 Tex. App. 149, 150, 12 S. W. Rep. 737. The comments of the county attorney require a reversal of the case, and the assistant attorney general frankly confesses this error. It may be also remarked that, inasmuch as Florence Hamilton was jointly indicted with defendant, she could not testify for him, nor in his behalf, as long as she was so indicted, nor until she had paid her fine and costs in case of her conviction. Code Crim. Proc. art. 737. For the indicated errors the judgment is reversed, and the cause remanded. All judges present and concurring.
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