PERKINS v. TERRITORY OF OKLAHOMA

PERKINS v. TERRITORY OF OKLAHOMA
1906 OK 39
87 P. 297
17 Okla. 82
Decided: 09/04/1906
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

PERKINS
v.
TERRITORY.

Syllabus by the Court.

¶0 Where a defendant is on trial charged with the commission of a crime, and fails to testify in his own behalf, and the prosecuting officer comments upon such failure to the jury, such comments constitute reversible error.
[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1672.]

J. W. Culwell, Geo. H. Healey, and Lawrence & Huston, for plaintiff in error.
P. C. Simons, Atty. Gen., for the Territory.

BURWELL, J.

¶1 The defendant was indicted jointly with his wife for the crime of stealing domestic animals. A severance was had, and the defendant placed on trial first. On this trial his wife was the only witness in his behalf. The defendant did not testify. It was contended by the prosecution that the cattle alleged to have been stolen were found in the defendant's possession. The county attorney, in his closing argument to the jury, used the following language: "Why don't he explain? Why don't they attempt to explain away these circumstances? Why don't they show you how it was he came into possession of that property, or that he was in some other country? That it was impossible for him to have done it? There isn't a word of evidence in explanation. You have just simply the testimony of the state's witnesses, and it is absolutely uncontradicted, in every particular. It shows that this property was stolen, and under these circumstances, this man watching the cattle from where he was plowing, as he told you had been his custom of watching them, keeping them back-" Here the court interrupted, using these words: "Mr. Loufbourrow, of course, you will not refer to the fact that the defendant did not testify." To which Mr. Loufbourrow replied: "No! No! I didn't desire it to be considered in that way. It is not likely that a bunch of milk cows would stray away a distance of 40 miles. Another thing, the identity of these cattle is not disputed. They were seen 10 miles from where they were taken."

¶2 It is insisted that the language on the part of the prosecuting officer was in violation of the provisions of the statutes which prohibit comment upon the failure of a defendant to testify in his own behalf. Section 5206 of the Statutes of Oklahoma of 1893, provides: "In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this territory, the person charged 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 mentioned on the trial; if commented upon by counsel it shall be ground for a new trial." This statute is plain and unambiguous, and, where its terms are violated, the court has no discretion, but must grant a new trial. The language used was clearly a comment upon the fact that the defendant had not taken the stand and explained his possession of the cattle. It is immaterial what words are used in such circumstances, if they are clearly calculated to direct the attention of the jury to the fact that a defendant has not testified in his own behalf, that he might have done so, and that by such failure some inference might be indulged against him. The language used could scarcely fail to have this effect, and the statement of counsel was not in any way corrected by the inquiry of the court in which it said: "Of course, you will not refer to the fact that the defendant did not testify." Where a defendant fails to offer any evidence, the prosecution is not prevented from discussing the evidence against him, and to insist that such evidence is undisputed; but a prosecuting officer under the statute must refrain from calling attention of the jury to the fact that a defendant has failed to testify in his own behalf. Wilson v. Territory,

¶3 For the reason stated, the case is hereby reversed, and a new trial granted, at the cost of the territory. All of the Justices concurring, except PANCOAST, J., who presided at the trial below, not sitting, and GARBER, J., absent.