The Act of March 16, 1878, 20 Stat. 30, c. 37, having provided
that a person charged with the commission of crime may at his own
request, be a
Page 149 U. S. 61
competent witness on the trial, but that "his failure to make
such request shall not create any presumption against him," all
comment upon such failure must be excluded from the jury.
A person indicted in a District Court of the United States for
using the mails to give information where obscene and lewd
publications could be obtained offered evidence, through his
counsel, of his previous good character, but did not offer himself
as a witness. The district attorney, in summing up, said:
"I want to say to you, gentlemen of the jury, that if I am ever
charged with a crime, I will not stop by putting witnesses on the
stand to testify to my good character, but I will go upon the stand
and hold up my hand before high Heaven, and testify to my innocence
of the crime."
Defendant's counsel excepted to this, upon which the court
said:
"Yes, I suppose the counsel should not comment upon the
defendant's not taking the stand. While the United States court is
not governed by the state's statutes, I do not know that it ought
to be the subject of comments of counsel."
Thereupon the assistant District Attorney said: "I did not mean
to refer to it in that light, and I do not intend to refer in a
single word to the fact that he did not testify in his own behalf."
To which counsel for defendant again excepted. Judgment being given
against the defendant, and the case being brought here by writ of
error
Held:
(1) That the exceptions and the writ of error properly brought
the matter before this Court.
(2) That the judgment below should be reversed.
The defendant below, George E. Wilson, the plaintiff in error
here, is a bookseller and publisher, carrying on his business in
Chicago, Illinois. He was indicted in the United States District
Court for the Northern District of that state for a violation of
section two of the Act of Congress of September 26, 1888, 25 Stat.
496, c. 1039, amending section 3893 of the Revised Statutes,
relating to the use of the mails to give information where and by
what means obscene and lewd publications might be obtained, and was
convicted and sentenced to imprisonment in the penitentiary of the
state for two years. To reverse that judgment, he has brought this
case to this Court on writ of error.
The indictment charged, in different counts, that the defendant,
by himself and another person, had deposited in the mail at
Chicago, for delivery to John Hobart at O'Fallon, Illinois, and
Jack Horner at Collinsville, Illinois, a letter and circular giving
information where certain designated lewd and obscene books could
be obtained. No attempt was made to show that
Page 149 U. S. 62
the letter and circular was mailed by the defendant in person,
but an attempt was made to show that some other person had done the
act at the instigation or request of the defendant, and that he was
responsible for it. The defendant did not request to be a witness
or offer himself as such, and the district attorney of the United
States, in summing up the case to the jury, commented upon the fact
that he had not appeared on the stand, as follows:
"They say Wilson is a man of good character. It is a grand thing
for a young man in Chicago to be the son of an honest man, because
blood will tell. If the father is honest, the chances are the son
will be honest too. Men live all their lives to build up a good
character, because it is a shield against the attack of infamy.
They called two or three witnesses here who testified to this young
man's character as being good, so far as they know; but I want to
say to you, gentlemen of the jury, that if I am ever charged with a
crime, I will not stop by putting witnesses on the stand to testify
to my good character, but I will go upon the stand, and hold up my
hand before high heaven, and testify to my innocence of the
crime."
To this language of the district attorney the counsel for the
defendant excepted, and called the court's attention to it, and the
court said:
"Yes, I suppose the counsel should not comment upon the
defendant not taking the stand. While the United States court is
not governed by the state's statutes, I do not know that it ought
to be the subject of comments by counsel,"
to which the district attorney replied as follows: "I did not
mean to refer to it in that light, and I do not intend to refer in
a single word to the fact that he did not testify in his own
behalf," to which the counsel for the defendant thereupon
excepted.
The Act of Congress of March 16, 1878, 20 Stat. 30, c. 37,
provides
"That in the trial of all indictments, informations, complaints,
and other proceedings against persons charged with the commission
of crimes, offenses, and misdemeanors in the United States courts,
territorial courts, and courts-martial, and courts of inquiry, in
any state or territory, including the District of Columbia, the
person so charged shall at his own
Page 149 U. S. 63
request, but not otherwise, be a competent witness, and his
failure to make such request shall not create any presumption
against him."
The objections of the defendant's counsel to the language of the
district attorney in his argument to the jury in referring to the
defendant's failure to appear on the stand as a witness and testify
to his innocence of the charge against him, and to the neglect of
the court to forbid and condemn such reference, were embodied in a
bill of exceptions, and constitute one of the grounds urged for a
reversal of the judgment and the award of a new trial.
Page 149 U. S. 65
MR. JUSTICE FIELD, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The act of Congress permitting the defendant in a criminal
action to appear as a witness in his own behalf upon his request
declares, as it will be seen, that his failure to request to be a
witness in the case shall not create any presumption against
him.
To prevent such presumption's being created, comment, especially
hostile comment, upon such failure must necessarily be excluded
from the jury. The minds of the jurors can only remain unaffected
from this circumstance by excluding all reference to it.
At common law, no one accused of crime could be compelled to
give evidence in a prosecution against himself, nor was he
permitted to testify in his own behalf. The accused might rely upon
the presumption of the law that he was innocent of the charge, and
leave the government to establish his guilt in the best way it
could.
This rule, while affording great protection to the accused
against unfounded accusation, in many cases deprived him from
explaining circumstances tending to create conclusions of his guilt
which he could readily have removed if permitted
Page 149 U. S. 66
to testify. To relieve him from this embarrassment, the law was
passed. In mercy to him, he is by the act in question permitted,
upon his request, to testify in his own behalf in the case. In a
vast number of instances, the innocence of the defendant of the
charge with which he was confronted has been established.
But the act was framed with a due regard also to those who might
prefer to rely upon the presumption of innocence which the law
gives to everyone, and not wish to be witnesses. It is not everyone
who can safely venture on the witness stand, though entirely
innocent of the charge against him. Excessive timidity, nervousness
when facing others and attempting to explain transactions of a
suspicious character, and offenses charged against him, will often
confuse and embarrass him to such a degree as to increase, rather
than remove, prejudices against him. It is not everyone, however
honest, who would therefore willingly be placed on the witness
stand. The statute, in tenderness to the weakness of those who from
the causes mentioned might refuse to ask to be witnesses,
particularly when they may have been in some degree compromised by
their association with others, declares that the failure of a
defendant in a criminal action to request to be a witness shall not
create any presumption against him.
In this case, this provision of the statute was plainly
disregarded. When the district attorney, referring to the fact that
the defendant did not ask to be a witness, said to the jury,
"I want to say to you that if I am ever charged with crime, I
will not stop by putting witnesses on the stand to testify to my
good character, but I will go upon the stand and hold up my hand
before high heaven and testify to my innocence of the crime,"
he intimated to them as plainly as if he had said in so many
words that it was a circumstance against the innocence of the
defendant that he did not go on the stand and testify. Nothing
could have been more effective with the jury to induce them to
disregard entirely the presumption of innocence to which by the law
he was entitled, and which by the statute he could not lose by a
failure to offer himself as a
Page 149 U. S. 67
witness, and when counsel for defendant called the attention of
the court to this language of the district attorney, it was not met
by any direct prohibition or emphatic condemnation of the court,
which only said: "I suppose the counsel should not comment upon the
defendant not taking the stand." It should have said that the
counsel is forbidden by the statute to make any comment which would
create or tend to create a presumption against the defendant from
his failure to testify.
Instead of stating, after mentioning that the United States
court is not governed by the state's statutes, "I do not know that
it ought to be the subject of comment by counsel," the court should
have said that any such comment would tend necessarily to defeat
the very prohibition of the statute, and the reply of the district
attorney to the mild observation of the court only intensified the
fact to which he had already called the attention of the jury: "I
did not mean to refer to it in that light, and I do not intend to
refer in a single word to the fact that he did not testify in his
own behalf," which was equivalent to saying:
"You, gentlemen of the jury, know full well that an innocent man
would have gone on the stand and have testified to his innocence,
but I do not mean to refer to the fact that he did not, for it is a
circumstance which you will take into consideration without
it."
By this action of the court in refusing to condemn the language
of the district attorney and to express to the jury in emphatic
terms that they should not attach to the failure any importance
whatever as a presumption against the defendant, the impression was
left on the minds of the jury that if he were an innocent man, he
would have gone on the stand as the district attorney stated he
himself would have done.
This language of the district attorney, and this action, or
rather want of action, of the court are set forth in the bill of
exceptions, and although exceptions are generally taken to some
ruling or want of ruling by the court in the progress of the trial
in the admission or rejection of evidence or the interpretation of
instruments, yet they can be taken to its action or want of proper
action upon any proceeding in the progress of the trial from its
commencement to its conclusion,
Page 149 U. S. 68
and, when properly presented, can be considered by the court on
writ of error.
The refusal of the court to condemn the reference of the
district attorney and to prohibit any subsequent reference to the
failure of the defendant to appear as a witness tended to his
prejudice before the jury, and this effect should be corrected by
setting the verdict aside and awarding a new trial.
Similar statutes to the one we have been considering have been
passed by several states, and the rulings upon them have been
substantially in accordance with our judgment in this case.
In 1866, the Legislature of Massachusetts passed an act almost
identical in terms with the act of Congress under consideration. It
provided that
"in the trial of all indictments, complaints, and other
proceedings against persons charged with the commission of crimes
or offenses, the person so charged shall at his own request, and
not otherwise, be deemed a competent witness, nor shall the neglect
or refusal to testify create any presumption against the
defendant."
The provision has been since reenacted in substantially the same
terms. Mass.Stats., 1866, c. 260; 1870, c. 393, § 1, cl. 3;
Pub.Stats. 1882, p. 987, c. 169, § 18, cl. 3. And in the case of
Commonwealth v. Scott, 123 Mass. 239, where the indictment
against the defendants was for breaking and entering a house in the
nighttime with intent to commit larceny therein, none of the
defendants testified at the trial, and the prosecuting attorney, in
his closing argument, commented upon this fact, when the counsel
for the defendants interrupted him and asked the judge to rule that
the fact that the defendants did not testify could not be commented
on by the government; but the judge, having first stated the law
that the fact that they did not testify did not create any
presumption against them, ruled that inasmuch as the matter had
been referred to by their counsel, the prosecuting attorney had a
right to comment on the reasons given for their not going upon the
stand and testifying in their behalf, and also to give the reasons
which the government contended really existed for their not
testifying, and permitted the prosecuting attorney
Page 149 U. S. 69
to proceed in his comments. The jury having rendered a verdict
of guilty, the defendants alleged exceptions, and the case went to
the Supreme Judicial Court of the commonwealth. The Chief Justice,
in delivering the opinion of the court, after referring to the fact
that the government had no right to interrogate a person accused of
crime or to compel him to testify, but was bound to sustain its
charge by independent evidence, observed that
"the statutes allowing persons charged with the commission of
crimes or offenses to testify in their own behalf were passed for
their benefit and protection, and clearly recognize their
constitutional privilege by providing that their neglect or refusal
to testify shall not create any presumption against them."
And, again:
"The course of the closing argument for the prosecution tended
to persuade the jury that the omission of the defendants to testify
implied an admission or a consciousness of the crime charged, and
the presiding judge, in permitting such a course of argument
against the objection of the defendants and in ruling that the
prosecuting attorney had a right to comment on the reasons which
the defendants' counsel gave for their not going upon the stand and
testifying in their behalf, and also to give the reasons which the
government contended really existed for their not testifying,
committed an error which was manifestly prejudicial to the
defendants, and which obliges this court to set aside the verdict
and order a new trial."
The Criminal Code of Illinois, after providing that in criminal
cases the accused may, on his own motion, testify in the case,
declares in a proviso that
"his neglect to testify shall not create any presumption against
him, nor shall the court permit any reference or comment to be made
to or upon such neglect."
In the case of
Austin v. People, 102 Ill. 261, 264, a
reference had been made to the neglect of the accused to testify
both in the opening and concluding argument for the prosecution,
and the court, in setting aside the verdict of guilty which was
rendered in that case, said:
"When the statute says that no presumption against the accused
shall be created
Page 149 U. S. 70
by his neglect to testify, it clearly meant that in cases where
the defendant should not choose to avail himself of the privilege
offered by the statute, the trial should be conducted in the same
manner and upon the same presumptions as if the statute had not
been passed."
And again:
"We do not see how this statute can be completely enforced
unless it be adopted as a rule of practice that such improper and
forbidden reference by counsel for the prosecution shall be
regarded as good ground for a new trial in all cases where the
proofs of guilt are not so clear and conclusive that the court can
say affirmatively the accused could not have been harmed from that
cause."
This view of the effect of the objections taken to the course of
the district attorney, and to the failure of the court to properly
condemn it, renders it unnecessary to consider any other alleged
errors.
The judgment must be reversed and the cause remanded with
directions to award a new trial, and it is so ordered.
