Welch v. State, 5 Div. 610
Decision Date | 12 May 1955 |
Docket Number | 5 Div. 610 |
Citation | 81 So.2d 901,263 Ala. 57 |
Parties | Carl WELCH v. STATE. |
Court | Alabama Supreme Court |
Bernard F. Sykes, Asst. Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the petition.
McKee & Maye, Opelika, opposed.
Title 15, Section 305, Code of 1940, is as follows:
'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.'
The sole question before us is whether the provisions of said section were violated by the occurrence stated in the opinion of the Court of Appeals. We quote: 'The defendant did not testify in the case nor introduce any evidence otherwise.
'In his argument to the jury the prosecuting officer stated that 'he had a good case and the defense had not offered any evidence.'
'* * * when the prosecuting officer made the statement of instant concern, the court overruled the objection and stated: 'I don't think that is directly commenting on the fact that the defendant did not testify. If I thought so, I would certainly sustain your motion.''
We cannot agree that the remark in the instant case is such as to result in a reversal of the case.
In his dissent in the case of Coats v. State, 36 Ala.App. 515, 60 So.2d 257, 260, certiorari granted 257 Ala. 406, 60 So.2d 261, wherein the decision of the Court of Appeals was reversed, the late lamented Presiding Judge Carr of the Court of Appeals, enunciated the following which we think is a correct statement of the law:
'It is generally held that a statement by the prosecuting attorney to the effect that the evidence for the State is uncontradicted or undenied is not a comment on the defendant's failure to testify.'
We have examined the authorities cited following this statement and they support the proposition. Also, in the case of Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565, 570, certiorari denied 258 Ala. 532, 63 So.2d 573, where the defendant was convicted of obtaining a county warrant by false pretenses, and the warrant bore the endorsement of the defendant, the Court of Appeals, in commenting on the solicitor's statement to the jury that "Nobody denies that's the signature of Cleve Littlefield", said:
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