State v. Buxton

• Citation: 79 Conn. 477,65 A. 957
• Court: Supreme Court of Connecticut
• Decision Date: 05 March 1907
• Parties: STATE v. BUXTON.

65 A. 957

79 Conn. 477

STATE

v. BUXTON.

Supreme Court of Errors of Connecticut.

March 5, 1907.

Appeal from Superior Court, Fairfield County; Alberto T. Roraback, Judge.

William Buxton was convicted of the illegal use of explosive material, and appeals. Affirmed.

Upon the trial, and during the opening argument of the assistant state's attorney, the following occurred: "Mr. Pullman: The accused has the right not to appear on the witness stand, but by keeping off the witness stand it shuts us off from asking him about his antecedents. Mr. Mullen (interrupting): I will object. The Court: I don't think you have any right to comment on the fact that he neglected to testify. Mr. Pullman: I have not commented on it, except to say that he has the right— The Court (interrupting): It seems to me you are getting pretty close to the border line. Mr. Pullman: He didn't take the stand, as was his right— Mr. Mullen (interrupting): I will object. The Court: I shall instruct the jury that the fact that he neglected to testify is not to be considered against him, and that fact should in no way be commented upon to his prejudice. Mr. Pullman: So we don't know where he came from." The defendant made no motion for other objection, but proceeded with the trial and submitted his case to the jury. After verdict the defendant filed a motion for a new trial, claiming that the incident above recited furnished sufficient ground for a new trial, and also that the verdict should be set aside as against the evidence. The action of the court in denying this motion is assigned as error.

George A. Mullen, for appellant. Galen A. Carter, Special State's Atty., for the State.

HAMERSLEY, J. (after stating the facts). Any person interested in the event of any action, civil or criminal, as a party to the action or otherwise, is made by statute a competent witness. Gen. St. 1902, §§ 677, 1509. The statute abrogates an arbitrary common-law rule for the exclusion of relevant testimony. It is a part of the legislative process by which, since the year 1830, the law of evidence has been radically changed and brought into accord with a public policy now firmly established which deems the due administration of justice to be best served and the rights of parties to actions, civil and criminal, to be best enforced and secured through the admission as far as practicable in all trials of any relevant testimony, although of a nature implying infirmities formerly regarded as justifying an arbitrary rule of exclusion, leaving to the trior the duty of weighing that testimony in view of all infirmities that may affect its credibility. Gen. St 1902, §§ 508, 677, 678, 710, 1509, 1512. Section 1509 provides that a person on trial for crime, although a competent witness, may testify or refuse to testify upon such trial, at his option. This provision is essentially declaratory of the common law. The maxim, "Nemo tenetur seipsum accusare," expresses a personal right recognized by the common law long before it received any protection of constitutional guaranty. The right is a personal one, involving exemption from compulsory disclosure of ones' crime when called upon to testify upon his own trial or in any legal proceeding. State v. Willis, 71 Conn. 293, 308, 41 Atl. 820. Whether or not the conduct of a person during his trial for crime in testifying or neglecting to testify is under certain circumstances a relevant fact, which the jury may consider as they may consider certain other facts which may transpire before them in the course of a trial, and so be the proper subject of comment by counsel, is a question we need not now consider. The limits of proper comment may be prescribed by rule, and the statute enacts that "the neglect or refusal of an accused party to testify shall not be commented upon to the court or jury." It is certainly the duty of counsel to obey, and of the court to enforce, this statutory rule of practice. The statute is silent as to the effect of a disobedience of the rule, and that effect must be found in the law regulating the enforcement of similar rules. Disobedience is a fact which may or may not injuriously affect the accused, and does not entitle the accused to a new trial as of right when it is clearly harmless. In the case at bar the comment of counsel was instantly checked by the court, the counsel was rebuked, and...