State v. Hayzlett, 43869

• Decision Date: 08 February 1954
• Docket Number: No. 43869,No. 2,43869,2
• Citation: 265 S.W.2d 321
• Parties: STATE v. HAYZLETT
• Court: Missouri Supreme Court

Page 321

265 S.W.2d 321

STATE v. HAYZLETT.

No. 43869.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1954.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 8, 1954.

Harry K. West, Rookfield, J. K. Owens, I. I. Ozar, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Gilbert Warren Hayzlett has been convicted of burglary and larceny and sentenced to four years' imprisonment. The evidence upon which he was convicted was circumstantial, but the circumstances irrefragably point to his guilt. The defendant did not testify and no witnesses were called to testify on his behalf. Briefly, the circumstances were that about 4 o'clock in the morning, December 23, 1951, a policeman saw an automobile, without headlights burning, emerge from an alley which ran past the rear of the Ryther clothing store in Macon. There were two people in the car and the policeman saw and later indentified one of the occupants of the car as Harold Weidlich. The policeman also noted the license number of the car. Ryther's, Incorporated, a men's clothing store, had been burglarized, the combination torn from the safe, and a quantity of men's clothing and other articles had been taken from the store. About 11:30 that same morning police officers saw Hayzlett drive away from a house in Kansas City and arrested him. He was driving his tan-colored Plymouth sedan with the license number noted by the policeman in Macon. In the back seat of his car there were two pieces of luggage, suits, coats and other apparel from Ryther's store and certain tools often used by burglars. A search of the house (with a search warrant) he was seen leaving, Weidlich's, revealed other clothing from Ryther's store and other tools used by burglars, including a 'wheel puller' or 'pulley puller,' a tool that can be used to pull the combination from the door of an ordinary safe. Marks on the store building and the safe were identified as having been made by the tools found in Hayzlett's car and the searched house.

Upon this appeal his counsel have assigned as error and briefed, from the motion for a new trial, the single question of whether he was entitled to a mistrial for the reason that a prosecuting attorney in his argument to the jury, in violation of the mandatory prohibition of the statute, referred to his failure to testify. V.A.M.S. Sec. 546.270. By assigning as error and briefing the single question, any other matter required to be raised and set forth in his motion for a new trial is not open to consideration upon this appeal. 42 V.A.M.S. Supreme Court Rule 28.02; V.A.M.S. Sec. 547.270.

The argument complained of and the circumstances in which it was made were these: Counsel for the state and the defense were allotted thirty minutes on each side in which to argue the case to the jury. There were four lawyers to argue, two on each side, and the prosecuting attorney of Shelby County was making the opening argument for the state. He had reviewed in an unimpassioned manner, the evidence pointing to the defendant's guilt and was urging a verdict of guilty when the sheriff intervened and said, 'Ten minutes.' Thereupon, the attorney made the statement complained of, 'When the State closed the evidence, what did the defense offer? They offered no evidence at all.' Defense counsel moved for a mistrial and a discharge of the jury for the reason that the argument was 'commenting directly or indirectly.' The court overruled the motions for a mistrial and the prosecuting attorney concluded his argument. Defense counsel argued and the prosecuting attorney of Macon County made the closing argument for the state. At the conclusion of the arguments the court, in chambers, considered the argument complained of and suggested that counsel had not objected to the argument or asked to have the jury instructed to disregard it, but the court offered 'to admonish' the jury to disregard the statement or to instruct the jury upon the subject of the defendant's right to not testify. Defense counsel declined the court's offer and the case was submitted to the jury. Counsel may not have made the precisely proper objection, but it was timely and the reason for it apparent from the objection. If the statement was objectionable as claimed, there was no withdrawal of it by state's counsel, there was no rebuke or other action on the part of the court and, in the circumstances, it may not be said that the offending remark was not objected to at all or its effect erased by any action on the part of counsel or the court. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582; State v. Conway, 348 Mo. 580, 154 S.W.2d 128; State v. McKeever, 339 Mo. 1066, 101 S.W.2d

If the prosecuting attorney in fact, either directly or indirectly, referred to the appellant's failure to testify he is entitled to a new trial. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94; annotation 68 A.L.R. 1108. On the other hand, the statute is limited to its express terms and if the argument did not in point of fact refer to his failure to testify the statutory prohibition has not been violated, or the appellant's rights infringed within the meaning of the statute. State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Conway, 348 Mo. 580, 154 S.W.2d 128. The defendant in a criminal case may testify, V.A.M.S. Sec. 546.270, but, 'If the accused shall not avail himself or herself of his or her right to testify * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.' V.A.M.S. Sec. 546.270; Supreme Court Rule 26.08. The key words of the statute, as the state points out, are 'accused' and 'testify,' and the ultimate test of whether the prohibition has been violated is whether the jury's attention was called to the fact that the accused did not testify. Annotation 68 A.L.R., loc. cit. 1108, 1121. Appellant's counsel make no effort to point out or demonstrate that the statement complained of referred to his failure to testify, they merely assert as a fact that it does. Because the case was tried on a change of venue 'in the small town of Shelbyville, Missouri, where every juryman knew everyone in the court room with the exception of the defendant himself,' it is said to have been evident to the jury that if anyone could or would testify for the defendant, it was the defendant himself....