Will Sanders v. State

• Decision Date: 04 November 1895
• Citation: 18 So. 541,73 Miss. 444
• Court: Mississippi Supreme Court
• Parties: WILL SANDERS v. STATE

18 So. 541

73 Miss. 444

WILL SANDERS v. STATE

Supreme Court of Mississippi

November 4, 1895

October 1895

FROM the circuit court of LaFayette county, HON. EUGENE JOHNSON Judge.

On the trial of the appellant, on an indictment for burglary, the assistant counsel for the prosecution, in his argument to the jury, used this language: "There was enough in this evidence to make it incumbent on the defendant to deny it and he has not done so." Upon defendant's objection the trial court properly stopped counsel and told him that he could not allude to or comment upon the fact that the defendant had not testified in his own behalf, and told the jury that they must disregard what counsel had said. And counsel thereupon said to the jury: "Well, then, consider that not said."

Defendant was convicted. Motion for new trial overruled; hence this appeal.

Reversed.

Kimmons & Kimmons and Stone & Lowry, for appellant.

The action of the assistant prosecuting attorney in commenting on the failure of the accused to testify vitiates the verdict. Yarborough v. State, 70 Miss. 593.

Frank Johnston, attorney-general, for the state.

In the case of Yarborough v. State, 70 Miss. 593, the following expression was employed: "This failure of counsel for the state to heed the presiding judge's admonition . . . must reverse the case," etc. From the language so used it impliedly follows that where the admonition of the judge is heeded, and counsel himself withdraws the objectionable remark, and the jury are told to disregard it, there is no reversible error.

OPINION

COOPER, C. J.

The judgment in this case must be reversed, and a new trial awarded, because counsel for the state, in his argument before the jury, commented upon the failure of appellant to testify. The statute expressly declares that "the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel." It is true, the court promptly rebuked counsel, and directed the jury to disregard the fact alluded to, and that counsel then asked that his remarks be considered as withdrawn. But as we have heretofore decided, this did not cure the error. Reddick v. State, 72 Miss. 1008, 16 So. 490. As was there said: "The statute forbids absolutely any comment on the failure of the accused to testify, and it is the right of every person charged with crime to insist that he enjoy this statutory immunity from criticism...