Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-22

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the defendant to appear as a wit
ness tended to his perjudice before
the jury. and that this effect should
be corrected by a new trial Other
{ eases holding directly that 1t was err
rcr for the States attorney to COM
rtent en- the failure of the accused 70
testify are cited in defendants brief.
The jury was properly instructed
that TIE defendant was under no Oh
legation to testify. that tiae statute
expressly declares that his neglect
to take the stand she'll rot create
any presumption OF guilt against him.
and -ha. they should decide the case
with reference alone to the evidence
actually introduced before them and
without reference to what might or
might net have -,een proved if other
persons had testified. The decisions are
not uniform bit number hold that
comrl ent by the prosecuting attorney
on the failure of the accused to teS-
thy is error that cannot be cured
by the Instructions Of the court
There is review of cases in State
V. Chisnell, SO w. Va, 667, and
those in Ohio and Indiana adhering to
this rule are there dlsapDroved 1t
was said that where the court corrects
the error by excluding the comment
ind sdmonishing the jury to disregard
it, the authorities fairly sustain the
proposition that it will not be ground
fer setting lie verdick aside.
1t will be noticed that the District
Judge sustained the alleged objection
able remarks only npon the groun
that they were in answer to what the
: defendants attorney had said in his
argument, something that does not
appear in the recor~. but what must
be presumed to have justified reply
Pcrrot v Com. 20 Ky. l.. 761.
Livingston State 141 Ind 131
State Hutchinson, 95 Iowa sos,
: Ga N W. 61O.
: Hoffman V State. SIS Wis 46.
State V Buralli. q New.
g The text and citations at Sec 96t
l. OF ThcmDs on Trial are to the eff
Il feet that an objection by the opposin.
t counsel. promptly interposed. follow
< ed by rebuke and admonition from
r the trail Judge to the jury to disre
t gard the prejudicial statement is
T generally, but not always, held stuff
= cient to cure the prejudice.
r l Spelling, \. T. and App. P. Sec
: 90.
# it be conceded that the spirit Z
e our statute prohibits unfavorabl
$ comment, when unprovoked. by pros
G ec,.ting attorneys on the failure D
l. accused persons to testify and tina
= such comment is reversible erro
s. which cannot be cured by the In
g structions of the court, nevertheless
it seems that under the weight of al
g. thority the rule does not apply
If the statements Of the attorney pros
o cutting are in reply to remarks mad
v by the defendant or his counsel.
Under a statute providing that tn
,r failure of the defendant to testif
II shall not be taken as a circumstanc
At against him, nor be alluded to G
commented upon by counsel in ii
II. cause. it Was deemed that any cor
5. ment On the part of the State r
a. garding his omission to appear a
V witness, and even if in reply !
a statements of his counsel. was groun
IS for = new trial, and that the errt
= could not be cured b. the instruc
g. ions Of the court Hunt State.
a ~o~ Avn 149. 1s Am St. 215. tt
il cases do not generally go so ia
1t. even under statutes more stringel
m than ohrs.
LII oAlN. u-.uCt Sic tu,F DiONiult
in that the defendants neglect or I
It's fnsal to testif.- shall not create al
is presumption against him. nor shs
ay any reference he made TO. nor al
of comment upon such neglect or 7
he fusal' it appeared that on the tri
to of the case in the court below, aft
the close of the evidence. era viii
3D. the counsel for the State was arguil
hn To he {sev.x /,
:. on what he claimed to have been {
es- tablished as matter of fact. the pr
oner interrupted him by speaking O
of and asserting the fact to be 9th,
Ia. wise. WhereupOn 1. counsel turn
nis to him and said in the hearing of {
nj. Jury: Mr. Cslkins.. you had an {
in portunity to testify in this case. al
ga did rot do so.
The retort having been provok
,es was not held to he error Calkins
MS State Is Ohio ST. 372
or In State Balch. 2 y, GIL. the 90,
lys stated: "It must be remember
a that this statement of the County
nst torney was not provoked or call
in forth by anything said by the {
un- PENDANT or his counsel: nor was
for said incidentally in some argume
re- addressed to the Court"
len In Parker V. State. 4S s. w 81
his I'VE hold that when appellant hrin
OBJ this waiter RI the attention of I
ed. jury he cannot complain. if the Sta
ep- rpnly. remarks upon his sugg
op- tiors''E
State .Hyland, 144 No. 302: &c
pms + &C rirht TO inject that issue il
Acn- the argument ard compisin if il "
BON not promptly met and refuted y
the Parkmen State. 50 SSW 73.
ties Crumpton v o. 1873, ". S. 1854.
no Moore~v State. % S. W. CSC.
re- State v. Glaye. 81 Kan $50.
anl v-ler V State. 50 Wis. 30.
,ro- State Potts, SO Iowa. 317.
hat In Sherry v State. 1873 Ind 677.
> was held that. Where. in crimil
ats action, counsel for the defends
ned stets OUTSIDE the bounds of leg
mate argument. and discusses matt
~. not prrner to be considered. the
q Tense is in no position to complain
all, counsel for the State follow tn