Simmons v. State

Decision Date01 August 1939
Citation139 Fla. 645,190 So. 756
CourtFlorida Supreme Court

En Banc.

Error to Circuit Court, Duval County; DeWitt T. Gray, Judge.

William R. Simmons, alias Roy Simmons, was convicted of rape, and he brings error.

Reversed and cause remanded for new trial.

COUNSEL Edgar W. Waybright and Roger J. Waybright, both of Jacksonville, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.



Defendant was convicted of rape and sentenced to life imprisonment. From the judgment and sentence of the court he brings writ of error.

The following occurred during the cross-examination of the defendant by the state attorney:

'Q. Did you testify at the preliminary hearing? A. No, sir.

'Q. Did you testify at the habeas corpus? A. No, sir.

Some time later after several other witnesses had testified defense counsel moved the court to declare a mistrial upon the ground that the state attorney by asking the above questions had commented on the failure of the defendant to testify at the preliminary hearing and at the habeas corpus proceeding. The motion was denied by the court and defendant has assigned this ruling as error.

Section 8385, Comp.Gen.Laws 1927, provides:

'In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf and a defendant offering no testimony shall be entitled to the concluding argument before the jury.'

This statute applies to comment on the failure to the accused to testify at a preliminary hearing, an application for bail, a habeas corpus hearing or a former trial, as well as his failure to testify in the present trial. Annotations, 68 A.L.R. 1153; 84 A.L.R. 790; 16 C.J., Criminal Law, Sec. 2247 p. 901.

While discussing certain blood tests in his final argument to the jury, the state attorney said:

'You may ask me why was the defendant willing to have this test made. The answer is simple, gentlemen. Because a test of this kind can never prove guilt. If it matches up; if human semen matches up with semen on the dress or any of the clothes in question, it does not prove a thing. Yes, it could be his. It could be the semen from the man. The defendant had nothing to fear, if it had turned out that way and had matched up. Up until that time the defendant had never opened his mouth. He could have put forth the defense--could have built up his defense upon this: 'Yes, I had intercourse with Thelma Perry, but it was with consent'. There was nothing brave or bold on the part of the defendant in submitting to this test. It is no evidence of his innocence because he was willing to submit to this test, because these tests never prove anything on such an accusation. That is why counsel was so anxious for the tests.' (Emphasis supplied.)

The defendant made no objection to the above.

This Court had held that it is the duty of the lower court to check the prosecuting counsel, and also to charge that the silence of the accused creates no presumption against him, and that the question of accused's silence is excluded from the consideration of the jury. Gray v. State, 42 Fla. 174, 28 So. 53; Wharton's Criminal Evidence, 11th Ed., Vol. 3, Sec. 1128, p. 1964. In Rowe v. State, 87 Fla. 17, 98 So. 613, we held that a violation of Sec. 8385, supra, by the prosecuting officer cannot be cured by the court instructing the jury to disregard his comment.

The statement of the state attorney above quoted was sufficient to direct the attention of the jury to the defendant's neglect to avail himself of his right. See Watt v. People, 126 Ill. 9, 18 N.E. 340, 1 L.R.A. 403; State v. Kimes, 152 Iowa 240, 132 N.W. 180; State v. Mosley, 31 Kan. 355, 2 P. 782.

A verdict will not be set aside by an appellate court because of the improper remarks of counsel or because of any omission of the judge to perform his duty in the matter unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence, in such event a new trial should be awarded regardless of the want of objection or exception. Akin v. State, 86 Fla. 564, 98 So. 609; Rowe v. State, supra; Carlile v. State, 129 Fla. 860, 176 So. 862.

We hold that calling the attention of the jury, by the prosecuting officer of the state, to the failure of the accused to testify in his own behalf at any preliminary proceeding or the present trial, no matter how innocently it may be done, comes within the exception and deprives the defendant of the protection the statute was intended to secure, and of his constitutional right to a fair and impartial trial. Rowe v. State, supra; Jackson v. State, 45 Fla. 38, 34 So. 243, 3 Ann.Cas. 164; Annotations, 68 A.L.R. 1108; 84 A.L.R. 785.

The assistant state attorney also made the following statement concerning the defendant in his argument to the jury:

'He had had some twelve years experience out there, from the evidence, handling this sort of trouble. He might have handled a great many others as she was handled in this case. We don't know.'

'And we don't know how many other girls this old Simmons has carried off that way who have never complained----

'Mr. Roger Waybright: Now, if the Court please, we object to that. There is nothing before this jury to indicate that Simmons ever carried off anybody.

'The Court: Yes. Mr. Bunch, just stick to the facts in evidence.'

There was no evidence...

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32 cases
  • King v. State
    • United States
    • Florida Supreme Court
    • July 11, 1962
    ...v. State, Fla.1958, 104 So.2d 524; Trafficante v. State, Fla.1957, 92 So.2d 811; Way v. State, Fla.1953, 67 So.2d 321; Simmons v. State, 139 Fla. 645, 190 So. 756; and Rowe v. State, 87 Fla. 17, 98 So. Because of my conclusion that the first prong of this bipartite question should be answer......
  • Singleton v. State
    • United States
    • Florida District Court of Appeals
    • February 4, 1966
    ...such as preliminary hearing, habeas corpus, or a former trial, Hathaway v. State, Fla.App.1958, 100 So.2d 662; Simmons v. State, 139 Fla. 645, 190 So. 756. 8 Or even the defendant's failure to deny guilt when he is accused in his presence extra judicially by a person jointly charged, McLend......
  • Gordon v. State
    • United States
    • Florida Supreme Court
    • July 25, 1958
    ...result is sowed and no manner of correction will prevent its fruition into a fixed prejudice against the defendant. In Simmons v. State, 139 Fla. 645, 190 So. 756, this court reaffirmed its traditional position on this subject. Perhaps it is understandable that under the tension of a heated......
  • Willinsky v. State
    • United States
    • Florida Supreme Court
    • April 5, 1978 discredit or prejudice the defendant by suggesting that he failed to give a statement at the preliminary hearing. In Simmons v. State, 139 Fla. 645, 190 So. 756 (1939), the prosecutor asked defendant if he had testified at the preliminary hearing and at a habeas corpus hearing. The defen......
  • Request a trial to view additional results

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