ARK. PERRY V. STATE. 133 PERRY V. STATE. Grim. 3863
Opinion delivered November 6, 1933. 1. CRIMINAL LAW—BYSTANDERS' BILL OF EXCEPTIONS.—Matters set out in a bystanders' bill of exceptions, if not controverted by counter affidavits, must be taken as true under CraWford & Moses' Dig., § 1322, although in conflict with, statements contained in the bill of exceptions signed by the judge. 2.. CRIMINAL LAW—DEFENDANT'S FAILURE TO TESTIFY.—The prosecuting attorney's coniment on failure of the defendant to take the stand in a larceny case is presumed to . be prejudicial under Craw-ford & Moses' Dig., §•3123, and was not invited by the argument of defendant's counsel that defendant did not know that the property was stolen; nor was the error cured by the judge's chaige concerning the defendant's right not to testify. Appeal from Sebastian Circuit Court, , Greenwood District; J. Sam Wood; Judge , ;- reversed. Leonard D. Caudle and Festum Gillam, for appellant. • Hal L: Norwod, Attorney General, and John H: Cald-well, Assistant, for appellee. BUTLER, J. A jersey heifer had been stolen in Sebas-tian County, and the appellant -was indicted, tried and convicted, on the charge of having received the same knowing it to have been stolen, and on appeal presents Various assignments of error for. reversal. In addition to the bill of exceptions certified by the presiding judge, appellant prepare& in proper form -a bystanders 7.bill of exceptions under the provisions of 4 1322 of CraWford & Moses' Digest. As the truth of the matters set out therein was not controverted by counter affidavits as-provided in said section, these must be- taken as true, although they conflict with the statements contained in the bill signed by the judge. BoOne V: Holder, 87 Ark: 461, 112 S. W. 1081 ; -Wingfield v. State, 95 Ark. 71, 128 S. W. 562. At the trial the defendant did not testify, -and exCeption is taken and assigned as error to that part of the argument of the Prosecuting attorney to which objection . was made as in effect a comment on the defendant's fail-
1-34 PERRY V:- STATE. [188 ure to testify in his own defense: The language objected to appears in the bystanders' bill of exceptions and is as follows : "Take Carl Mortenson, the poor, little, freckled-face, stuttering kid, raised around here. Practically all pf you know him. He would never have thought of this.- He said so. It has never been. denied. Perry said that : 'If you have got.any `hot stuff ' over there, bring it over. I can use it.' By 'hot stuff ' he nieant anything that Carl would steal.' In: fact, the defendant has not denied a single, solitary iota of evidence that has been given against hini from the stand here today. , There's the brains of -this [pointing, to defendant] Herman Perry:" The necessary effect of this language waS to direct to the jury's attention the failure of the defendant to té gify. This court, in Bridgman v. 'State, 170 Ark. 709, 280 S. M T. 982, skid : "This"cOurt is conimitted to the rule that, under § 3123 -of Crawford & Moses ''.11igest; it is improper and presumptively prejudicial for the prose-entirig' attorney to,:call the attention of the jury to the failure of the accused to testify. Lee State, 73 Ark. 14 , 8, 83 S. W. 916, and • Starnes, v. State, 128 Ark. 302, 194 S. W. 506." . . In 'overruling the objection made to the arguinent, the. court said -to the appellant's attorney : "You have opened the !way.-He is only arguing the point You raised." This'action of the court and the reasOn given is *SOught to be jnStified -by the'. rule announced in Collins v: State, 143 Ark. 604, 221 S. W. 455, -on : the theory that in this case', as in that, the error had -been 'invited by, appellant's counsel: In Collins v. State, supra,'in announcing its conclusion, the court said: "But it appenrs froin the record- that 'the objectiOn' to this 'remarkk was Overruled because: cOunsel foi'defendant had stated that apPellant had not .taken the stand for the reason that it was not necessary for him to do so, the inference being that there was nothing for appellant to deny ; and to that statement the prosecuting attorney replied that appellant could have taken the stand and denied selling the stuff. This is a case of invited error. Appellant's counsel should not
AICj PERRY V. 8TATE. 135 have commented upon • appellanes failure to :take: the stand. He should have based his argument upon the testimonY which went to the jury Without commenting upon the fact that appellant had not testified atall: . The statute is . a shield, .and not a sword. .It gives the defendant the right to testify at this election; and provides that his failure to make such request_ shall not create : any. .pre-suraption against _him. ,But it does not give .his counsel the right to discuss the; failure to make this request and to furnish explanatiOns concerning it.!'„. It was on the testimony of Carl Mortenson, the admitted thief, that the . State chiefly relied to establish the charge that ,the animal stolen was in defendant's possession with the guilty knowledge of the :conaniission of the larceny. Several persons , had testified as to the repeated statements of this witness that -defendant kneW nothing about his having Stolen the animal. •In commenting on the action of Mortenson and the testimony of these witnesses, appellant's counsel in his argument to . the jury, said : f` What was 1\fortenson's story of this affair all the way through up to the time and sometime after he was placed in jail? ,He- said that Perry did not know anything about it. He toldi Jim Efurd that Perry did not know anything about it. He told Jess :Wilson in Perry's presence that Perry did not know anything about it. Perry told Jess Wilson, in Mortenson's presence, that he, Perry, did not know anything about it... About' what ? About the heifer having ' been stolen, of course: We Say that Perry did not know. anything About it, . about the heifer having been stolen; and when you hear from Perry again he will still be saying that he did not know anything about - This is- the statement which, it iS claithed bydthe appellee, brings it within the rule announced in Collins V. State, supra. Here the statement of appellant's counsel and the lan g uage Used is quite different froth that usdd in the. case of Collins v. State. Appellant's plea had put in issue the truth of the charge, and it was of itself a denial, and the statement just quoted, as we view it, can in no just or fair senSe be interpreted as any• reference
136 PERRY V. STATE. [188 to the failure of the defendant-to testify; or an attempt to justify. that omission, as was done by defendant's counsel in Collins v. State, supra, but was a legitimate argument based our the evidence that Mortenson's testimony in the court was 'unworthy of belief, and that, although the animal was in appellant's possession, he knew nothing of its having been stolen. If the testimOny of appellant's witnesses were true, this evidence justified the conclusion he reached which he sought to impress upon the jury and which he had a right to urge for their acceptance. Learned counsel for the State contends that; even though the argument complained of . was not invited and was im. ejudicial, that prejudice was removed because the court had instructed the jury to the effect that, while having the right to testify; defendant's failure-to do so was not to be considered by the jury in determining his guilt or innocence. To sustain thiS position, we *are referred to the cases of Ingram v. State, 110 Ark. 538, 162 S..W. 66, and Starnes v.• State, 128 Ark. •302, 194 S. W. 506. In our opinion, these cases do not support the contention made. In the first •case the court . noticed that in Tiner v. State, 110 Ark. 251; 161 S. W. 195, any opinion was withheld as to whether comment by the prosecuting attorney would be reversible error where the court directed the jury to disregard it: • The court then proceeded to notice the contrariety of view of the courts on this question and the tendency of the more modern or recent cases to hold that, where 'such reference has been made and is withdrawn and corrected by the charge of the court, it does not' constitute reversible error. In adopting that view, this court held in the case then before it that, wheu_attention of the court_was called to comment by the prosecuting attorney of defendant's failure to testify, and he reminded the jury that they had been instructed not to consider that fact and emphasized again its duty in that respect, this served to cure the error. In Starnes v. State, supra, the court approved and followed the rule laid down in the Ingram case. In that case, when the prosecuting attorney violated the rule the court im-
mediately: instructed the jury as to their duty, charging them not to consider the failure of the defendant to testify or draw any unfavorable inferences against him- on that account. In the instant Case; the court, while having first instructed the jury on the failure . of the defendant to testify, and define their duty . in that regard, subsequently approved the argument of the prosecuting attorney which appellant construed as a, comment on his failure to testify, thus nullifying The force of . the chargé which had before been- given. . Because of the statute . , we must presume. that preju-. dice resulted when not Temoved by promptaction. of the, court..As said in Bridgeman v.. State, supra:," The Legis7, lature has . seen . fit to pass ,the statute ,;in question,, and there seems to .be,no- discretion with. the.court in passing upon the probable : injury of. such :allusion. , being true, , we: ,haye , o ..alternatiye , except.,.to reverse the judgment." . • •,., Because : the judgment must be , reyersed, it ,becomes unnecessary to notice the : other alleged errors ,as they are not likely to occur again, and, since there must be, :a.,,reT trial of this case, , we refrain from commenting, on the weight and sufficiencf bf the evidence._ Reversed a • n d • rema • n • de •. d f . or :a, 'new trial. ..• •
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