State v. Barker
| Decision Date | 14 February 1966 |
| Docket Number | No. 51542,No. 2,51542,2 |
| Citation | 399 S.W.2d 1 |
| Parties | STATE of Missouri, Respondent, v. Ronald Dean BARKER, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Richard Provaznik, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Wm. Clark Kelly, Springfield, for appellant.
PRITCHARD, Commissioner.
Defendant was convicted of the commission of the crime of burglary of a dwelling house pursuant to the verdict of a jury. It was alleged in the information that defendant was convicted, sentenced and served a sentence for a previous felony, and in accordance with the second offender act (Sec. 556.280, RSMo 1959, V.A.M.S.) the court found that fact and subsequently sentenced him to four years' imprisonment in the custody of the Department of Corrections.
The sole issue on this appeal is whether the trial court erred in refusing to give to the jury defendant's requested Instruction No. 11 which relates to defendant's choice not to testify in the case. Defendant files no brief, but this sole issue is adequately preserved in his timely motion for new trial. Instruction No. 11 is as follows:
'The Court instructs the jury that the law does not call upon or require a defendant to establish his innocence, and that a defendant may properly choose not to take the witness stand and testify, in which case the burden remains upon the prosecution to prove the defendant guilty beyond a reasonable doubt.
Defendant's five assignments of error may be grouped. He contends that he was entitled to have the jury instructed regarding the matters set forth in the instruction, and that the refusal denied him due process of law under the Fourteenth Amendment of the Constitution of the United States; that the refusal violated his privilege against self-incrimination guaranteed by the Fifth Amendment, and made applicable to the states under the Fourteenth Amendment of the Constitution of the United States; that the refusal to give the instruction deprived him of the full and complete protection of that portion of the Fifth Amendment of the Constitution of the United States which provides that no person in any criminal case shall be compelled to be a witness against himself; that the refusal permitted the danger to exist that the jury might draw unfair or unwarranted inferences against him because of his exercise of his constitutional privilege to remain silent and [the court] failed to limit or prohibit by instruction any inference to be drawn by the jury from the defendant's silence, all in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment of the Constitution of the United States; and that the refusal to give the instruction to limit or prohibit any unfair inference to be drawn by the jury from his election to remain silent effectively imposed a penalty or sanction against the exercise of his constitutional rights, all in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment, and in violation of the due process clause of the Fourteenth Amendment, of the Constitution of the United States. In support of assignments of error in his motion for new trial, defendant therein cites the cases of Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.
Wilson v. United States, supra, held as reversible error a reference by the district attorney, in summing up the case to the jury, of the failure of the defendant to appear as a witness because such reference violated the Act of Congress of March 15, 1878 (20 Stat. at L. 30, chap. 37) [1940 ed., Judicial Code and Judiciary, 28 U.S.C. Sec. 632], which provides that the person charged with the commission of a crime shall, at his own request, but not otherwise, be a competent witness, and the his failure to make such request shall not create any presumption against him. Malloy v. Hogan, supra, although deciding that the provisions of the Sixth Amendment on self-incrimination of the United States Constitution are, through the Fourteenth Amendment thereof, applicable to the states, had no question of defendant's entitlement to a limiting instruction upon his failure to testify. Bruno v. United States, supra, held that under the Federal Act, now substantially 18...
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...indicated.2 The revisor, in 1879, split this act into two sections, now codified at sections 546.260 and 546.270.3 Cf. State v. Barker, 399 S.W.2d 1, 3 (Mo.1966), wherein it was held not error to refuse a similar instruction at defendant's request. In Hutchinson, Judge Donnelly observed tha......
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Christian v. State, SD 33998
...from the jury any reference to the constitutional right [citing both constitutions] against self-incrimination." State v. Barker , 399 S.W.2d 1, 3 (Mo.1966) (construing section 546.270 and a former version of Rule 27.05, Rule 26.08) (emphasis added). The protection applies during the entire......
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