Turner v. State

• Decision Date: 05 October 1939
• Docket Number: 4 Div. 102.
• Citation: 191 So. 396,238 Ala. 352
• Parties: TURNER v. STATE.
• Court: Alabama Supreme Court

191 So. 396

238 Ala. 352

TURNER v. STATE.

4 Div. 102.

Supreme Court of Alabama

October 5, 1939

Certiorari to Court of Appeals.

Walters & Walters, of Troy, for petitioner.

Thos S. Lawson, Atty. Gen., and L. L. Mooneyham, Asst. Atty. Gen for the State.

Petition by Horace Turner for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Turner v. State, Ala.App., 191 So. 392 affirming a conviction of assault with intent to murder.

Writ denied.

BOULDIN Justice.

Petitioner was convicted of an assault with intent to murder. On his trial, he did not elect to become a witness in his own behalf.

Defendant's refused charge reads: "I charge you, the fact that the defendant did not testify cannot be considered against him."

The Court of Appeals, applying Supreme Court Rule 45, held its refusal error without injury.

This petition for certiorari is to review this holding.

Our Statute, Code § 5632, reads: "On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel." [ Italics supplied].

This statute was considered in Thomas v. State, 139 Ala. 80, 36 So. 734, 735. The refused charge, No. 5 in that case, reads: " '(5) No inference or conclusion should be drawn by the jury from the fact that the defendant was not sworn and put on the stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.' "

After quoting the statute, the opinion proceeds: "The fifth written charge to the jury requested by the defendant in substance states the law applicable to the case. It was a fact that the defendant failed to make the request to testify in the case, and the charge could not, therefore, be condemned as being abstract. Nor should it be condemned as being argumentative, since it contained nothing more than the statement of an admitted fact and the law applicable under the statute. This charge should have been given, and for the error committed in its refusal the judgment of the court below must be reversed."

While the statute declares the failure to become a witness in his own behalf "shall not create any presumption against him," this is coupled with "nor be the subject of comment by counsel." The statute is designed to prevent any unfavorable inference from defendant's silence. This is the import of the charge approved in the Thomas case, supra.

The charge requested in the instant case is of like import, and not subject to criticism because of its wording.

In Brandes v. State, 10 Ala.App. 239, 65 So. 307, the Court of Appeals held: "It was not error for the court to caution the jury not to consider adversely to the defendant, or favorably to him, the fact that he did not testify." This expression does not support an argument that such instruction should caution the jury against any favorable inference, as well as adverse inference. The statute is directed against adverse inferences; assumes there is no occasion for caution against favorable inference for defendant from his silence.

At common law the defendant in a criminal case was not a competent witness in his own behalf. The rule extended to civil causes. 70 C.J. 193, § 260.

The basis for disqualifying parties as witnesses was a notion that the temptation to falsify was too great. 28 R.C.L. 471, § 59. That it "tendeth to perjury" was the basis of numerous rules of law evolved by great jurists and law makers. The statute requiring certain transactions to be evidenced in writing is everywhere known as the statute to prevent frauds and perjuries. The thoughtful jurist of our day is appreciative of the sound policy of discouraging perjury in the courts. There can be no administration of justice if the truth be not ascertainable from the mouths of witnesses on oath.

A riper wisdom and experience decreed that it were better not to close the mouths of parties, even in criminal cases. This led to statutes such as ours, now well-nigh universal; not uniform, however, in content. In some, the defendant is merely permitted to make a statement of such facts as he may deem helpful, not subject to cross-examination on the whole case. Under our statute, however, if he elects to become a witness, he waives his constitutional shield against self-crimination, and becomes subject to cross-examination on all features of the case. He is under oath to tell the truth, the whole truth, and nothing but the truth. Clarke v. State, 78 Ala. 474, 56 Am.Rep. 45.

It is fair to assume all these matters were in the mind of the law makers when framing this carefully worded statute. The aim was to abolish the rule which compelled the accused to sit dumb before his accusers, to enable him, at his election, to give his version of the affair, to present facts, maybe known to him alone, tending to show freedom from guilt, or to mitigate the offense made out, in many cases, by adversaries highly interested. Many reasons, other than admission of the State's evidence, may, under advice of counsel, influence the election not to testify.

But the temptation to perjury was not overlooked. Hence, the safeguards...