Yarbrough v. State

• Decision Date: 27 March 1893
• Citation: 12 So. 551,70 Miss. 593
• Court: Mississippi Supreme Court
• Parties: ABNER YARBROUGH v. THE STATE

12 So. 551

70 Miss. 593

ABNER YARBROUGH v. THE STATE

Supreme Court of Mississippi

March 27, 1893

FROM the circuit court of Winston county, HON. A. G. MAYERS Judge.

Appellant was convicted of murder, and sentenced to the penitentiary for life. The opinion contains a sufficient statement of the case to indicate the point decided. To this statement it may be added that there was testimony tending to show certain confessions made by the accused, and evidently it was to this testimony counsel for the prosecution was alluding when he was interrupted by the court as shown in the opinion.

Reversed and remanded.

No counsel for appellant.

Frank Johnston, attorney-general, for the state.

While it may be true that the statute was technically violated by the action of counsel for the state in alluding to the failure of the defendant to testify, the error is unquestionably without prejudice. The record shows that, by his voluntary confessions, the accused had sealed his own doom. The remark by counsel could not possibly affect the result. No other verdict than that of guilty was possible. On this point, see Lamar v. State, 66 Miss. 93.

OPINION

WOODS, J.

In his argument of the case before the jury, one of the attorneys for the prosecution used this language, viz.: "Defendant has not taken the stand, which is his privilege under the law, and no inference can be drawn from the fact--," when the court interrupted counsel, and directed him not to make any comment. The counsel then resumed his address, and said: "Unfortunately for the defendant, he has not, in this case, for he has immolated himself on an altar of his own erection." This failure of counsel for the state to heed the presiding judge's admonition, and his persistent disregard of a plain requirement of law, must reverse this case, and secure to the appellant a new trial.

The statute declares that "the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel." The word "comment," as employed in the statute, does not mean to criticize or condemn or anathematize the accused on his failure to testify. It forbids, in unmistakable language, any comment friendly or unfriendly. It forbids any remark, of any character, in any words, upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel.

In this case, comment was made; criticism was indulged. The...