State v. Monahan

• Decision Date: 01 June 1921
• Citation: 114 A. 102,96 Conn. 289
• Court: Connecticut Supreme Court
• Parties: STATE v. MONAHAN et al.

114 A. 102

96 Conn. 289

STATE v. MONAHAN et al.

Supreme Court of Errors of Connecticut.

June 1, 1921

Appeal from Superior Court, New London County; George E. Hinman Judge.

Andrew Monahan and others were convicted of breaking and entering a car with intent to steal goods, and appeal. No error.

George C. Morgan, of New London, for appellants.

Hadlai A. Hull, State's Atty., of New London, for the State.

WHEELER, C.J.

The appeal raises a single point-error in the reference by the state's attorney in his argument to the jury to the failure of the defense to produce evidence as to certain facts which were material in the case. Counsel for the accused seasonably excepted to the remarks as constituting comment upon the failure of Church to testify in the case. The state's attorney did not in this connection directly mention Church or his failure to testify in his own behalf. Monahan and Plummer, the other accused, testified as witnesses for the defense.

Our Declaration of Rights in affirmance of the common law provides that an accused " shall not be compelled to give evidence against himself." Conn. Const. art. 1 § 9. General Statutes, § 6634, as amended by chapter 89, Public Acts of 1919, supplement this constitutional guaranty by providing that-

" The neglect or refusal of an accused party to testify shall not be commented upon to the court or jury."

This statute, deemed so essential to the just rights of an accused when first enacted, to-day has its doubters among our foremost jurists and publicists. But even though the appellate court or the trial court may regard the statute with less veneration than its originators did and think even less of the judicial reasoning which supports an accused in failing to testify in his own behalf, neither must permit any neglect or unseemly tolerance in its enforcement. While the statute remains a law, it is the duty of counsel " to obey, and of the court to enforce," it. State v. Buxton, 79 Conn. 477, 479, 65 A. 957. The representative of the state does not obey this statutory rule if he comments in the course of the trial directly upon the neglect or failure of the accused to testify, or indirectly, by reference, suggestion, or inference calls the attention of the jury so pertinently to this fact that the ordinary mind would understand that this was the meaning and direction of the comment. The intent of the statute is to exclude from the consideration of the jury the fact that the accused did not testify. " Substantially," the Supreme Court of Maine says, " as if the law did not allow him to be a witness." State v. Banks, 78 Me. 490, 492, 7 A. 269; Commonwealth v. Scott, 123 Mass. 239, 241, 25 Am.Rep. 87. But disobedience of this statutory rule of practice does not entitle the accused to a new trial as of right unless it appears to have injuriously prejudiced him before the jury. And failure of the court to enforce the statute will not of itself be ground for granting a new trial for the accused may waive its enforcement " by neglecting to move for a discharge of the jury at the time and by proceeding without further objection or motion to an adverse ending of the trial." State v. Buxton, 79 Conn. 477, 479, 65 A. 957.

In the case before us the counsel for the accused seasonably objected because the remarks of the state's attorney constituted comment upon the failure of Church to testify and duly excepted. The better practice would have been to have moved for the discharge of the jury at the time of the comment, but since the ground of the objection was fairly stated and the court had before it the exact claim of counsel and the court at the time stated that it would cover the matter in its charge, we think there is no basis for the claim that counsel waived the point by not following the most approved practice. The comment objected to was not comment upon the failure of the accused Church to testify. It neither directly referred to that fact nor could an inference to that effect be fairly drawn from the comment. The comment was to the failure of the defense to produce evidence which was essential to the case of the accused. The statute prevents prejudice to an accused from his failure to testify it does not prevent prejudice to his case from the failure to produce any evidence or any sufficient evidence to establish his case.

The state must establish the guilt of the accused as charged beyond a reasonable doubt. It has the right, in sustaining its burden, to point out in the argument the contradictions in the evidence, the failure to make explanation where such is reasonable to expect, the failure to explain incriminating circumstances when such exist, the fact that the claims of the state stand uncontradicted or unexplained, or that the defense has introduced no affirmative evidence or no adequate affirmative evidence. To deny the prosecution this right would prevent any fair analysis or proper discussion of the testimony. All fair and legitimate argument is open to the representatives of the state. All the restriction which this statute imposes is the omission of all reference, directly or indirectly, to the failure of the accused to testify. The trial court should be alert to prevent violation of the statute by subterfuge or indirection, but it cannot find a violation of the statute in the argument of the state, fairly presented, that the essentials, or an essential, of the case stand uncontradicted merely because this may suggest to the jury that the accused had it within his power to testify upon this point. The authorities sustaining the views we express are numerous and in substantial harmony. Some of the instances in which comment by the prosecutor has been sustained are these:

" Have they told us how she came by

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