State v. Tennison
| Citation | 42 Kan. 330,22 P. 429 |
| Parties | THE STATE OF KANSAS v. LUCY TENNISON |
| Decision Date | 05 October 1889 |
| Court | United States State Supreme Court of Kansas |
Appeal from Johnson District Court.
LUCY TENNISON was charged with the murder of her husband J. D Tennison, by means of poison. She was tried at the January term, 1889, found guilty as charged, and sentenced for murder in the first degree. She appeals.
Judgment reversed.
H. L Burgess, and I. O. Pickering, for appellant.
L. B Kellogg, attorney general, and J. W. Parker, county attorney, for The State.
OPINION
The defendant was charged with the murder of her husband, J. D. Tennison, by means of poison, and was convicted of murder in the first degree upon that charge. Numerous errors are assigned in the record for reversal; but deeming the last one of the most importance, and of sufficient magnitude to require the reversal of the judgment, we shall not pass upon the other questions presented.
The defendant at the trial did not testify as a witness on her own behalf, and no confession of the commission of the offense charged was proven. John T. Burris, one of the counsel for the state, made the closing argument, and in the latter part of his argument used the following words: To this statement counsel for the defendant at the time objected and excepted; and the court then said that no reference must be made to the defendant's failure to testify, and said to the jury that they had been instructed upon that point, and must not consider the same. Thereupon counsel Burris said that he had no "reference to that matter, but far from it," and proceeded with his argument. Defendant insists that this statement by counsel was in violation of § 215 of the criminal code, part of which section is as follows:
"And provided further, That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place."
With some hesitation, we agree with counsel for defendant. While it is not very clear that this statement was made with the intention of calling the jury's attention particularly to the fact that the defendant did not testify, yet we think it was calculated to attract their attention in that direction. The crime charged was death caused by the administration of poison, and the state relied upon circumstantial evidence to establish it. The record fails to disclose any direct testimony that poison was administered by the defendant. She then was the only living person who knew the truth of that charge, and as counsel said, she refused to divulge it. As far as the trial was concerned, there was but one of two ways in which she could have divulged it: either by confession of the crime, or by going upon the witness stand and testifying to her innocence; and doubtless the jury so understood it. It is...
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