State v. Baldoser

• Decision Date: 13 May 1893
• Citation: 55 N.W. 97,88 Iowa 55
• Parties: THE STATE OF IOWA, Appellee, v. JACOB BALDOSER, Appellant
• Court: Iowa Supreme Court

55 N.W. 97

88 Iowa 55

THE STATE OF IOWA, Appellee, v. JACOB BALDOSER, Appellant

Supreme Court of Iowa, Des Moines

May 13, 1893

Appeal from Keokuk District Court.--HON. DAVID RYAN, Judge.

THE defendant was indicted, convicted, and sentenced for the crime of seduction, and he appeals.

Reversed.

C. H Mackey, for appellant.

John Y Stone, Attorney General, and Thos. A. Cheshire, for the State.

OPINION

KINNE, J.

I.

An exception was taken by the defendant to the following statement made by one of the counsel for the state to the court, during the trial, and in the presence and hearing of the jury, and while he was arguing the question as to the admissibility of certain testimony, viz.: "They have the same right we have to put the defendant upon the stand, and let him tell his story, the same as we have." When this statement was made the state had not yet closed its case in chief, and the defendant had not then been afforded an opportunity to elect whether or not he would testify. Our statute, Code, section 3636, among other things, provides that defendants in criminal cases shall be competent witnesses in their own behalf, but can not be called as witnesses by the state, and, "should a defendant not elect to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state, during the trial, refer to the fact that the defendant did not testify in his own behalf; and, should he do so, such attorney or attorneys will be guilty of misdemeanor, and defendant shall, for that cause alone, be entitled to a new trial." The attorney general contends that the statement made was not within the inhibition of the statute; that no reference was made to the fact that the defendant did not testify in his own behalf; that it was simply the statement of a legal proposition. We are called upon to determine whether such a statement, made prior to the time when the defendant could be called as a witness, comes within the statute referred to. In this case the defendant did not testify.

In State v. Moxley, 102 Mo. 374, 14 S.W. 969, 15 S.W. 556, counsel for the state, in his opening argument to the jury, said: "They have offered not a word to show how she came to her death. Not a neighbor is put on the stand to show what he said caused her death. There they are, alone. She is in perfect health, and in the nighttime she comes to her death suddenly. We say that common honesty, common decency, requires at the hands of that man, when he sees his neighbors, to tell how she came to her death." It will be observed that there was no reference here directly to the fact that the defendant had not testified, and yet the court held that the language used "was an adroit and insinuating attempt indirectly to accomplish what could not have been accomplished by a direct statement." The Missouri statute provides that the failure of the defendant to testify "shall not be referred to by any attorney in the case." The statement was held to be a plain violation of the statute. See Jordan v. State, 29 Tex. Ct. App. 595, 16 S.W. 543. The Texas statute provides that the fact that the defendant has failed to testify shall not "be alluded to or commented on by counsel in the cause," and under it, it is held, that a new trial should be awarded when allusion was made to the fact, and the district attorney read part of the legislative act prohibiting such allusions and comments. Hunt v. State (Tex. App.), 28 Tex. Ct. App. 149, 12 S.W. 737. In Indiana, under a statute similar to that in force in Texas, it is held that allusions by counsel for the state to the fact that the witness has not testified can not be cured by the court's admonishing counsel, or instructing the jury, to pay no attention to what he said. Long v. State, 56 Ind. 182. In Massachusetts it is held that the protection of the statute is not waived by any language used by the defendant's counsel in the heat of argument; that it could only be waived by the defendant's going upon the stand as a witness. Commonwealth v. Scott, 123 Mass. 239; Commonwealth v. Nichols, 114 Mass. 285. The statute of Illinois provides that the court shall not "permit any reference or comment to be made to or upon such neglect" to testify. In that state it is held that the subject must not be referred to at all, and that the fact that when objection was made the court stopped counsel, and admonished the jury, was of no avail. Quinn v. People, 123 Ill. 333, 15 N.E. 46. See, also, Baker v. People, 105 Ill. 452; Austin v. People, 102 Ill. 261; Angelo v. People, 96 Ill. 209. In West Virginia, under a statute providing, "nor shall any reference be made to, nor comment upon, such failure, by any one during the progress of the trial, in the hearing of the jury," and when, prior to the state's closing a case, the attorney for the state suggested to the attorneys for the prisoner, in the hearing of the jury, "that the attorneys for the prisoner could prove this fact," that is, that a certain matter had been communicated to the defendant, "by their own parties, when they were put upon the stand," which was objected to, and the court announced that it disapproved of the remark, whereupon counsel said he referred to the witnesses for the defense, not to the parties, it was held that, the time not having arrived when the defendant could testify, the language used was not objectionable. State v. Ice, 34 W.Va. 244, 12 S.E. 695. In Coleman v. State, 111 Ind. 563, 13 N.E. 100, the prosecutor, in making his opening statement of the case to the jury, said: "You should watch the evidence closely. We do not know that the defendant will go upon the stand. He has not been sworn. I noticed that. If he should go on the stand, you should watch." At this point the statement was objected to, and the objection sustained, whereupon counsel for the state said, "I withdraw the statement from the jury." Afterwards the defendant did testify as a witness in his own behalf. The statute of that state provides, if the defendant "do not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered, by the jury trying the same." The law also makes it the duty of the court, in such case, in its charge, to instruct the jury as to their duties under this statute. In that case the same claim seems to have been made as in the case at bar, that the remarks are not within the literal prohibition of the statute. Touching this, the court said that the remarks, "although not within the literal prohibition of the statute, were nevertheless in palpable violation of its spirit and purpose; * * * that the prosecutor may not evade the statute by ingeniously injecting into his opening statement remarks which do all the mischief which the prohibitory part of the statute was intended to prevent. The effect of the remarks must have been either to coerce the defendant to testify, as has been said, "with a halter about his neck, or to induce him to remain silent."

Our own statute is more rigid in its provisions than any we have been able to find, for ours provides, not only that the fact of the defendant's failing to testify shall not be referred to during the trial, but a violation of the statute is made a misdemeanor, and such reference, alone, entitles the defendant to a new trial. In State v. Graham, 62 Iowa 108, 17 N.W. 192, it is said: "The statute is explicit that the district attorney shall not refer to the fact that the defendant did not testify in his own behalf. There is nothing which he can say about the fact that will justify a reference to it, and courts should hold district attorneys to a strict...