Cotton v. State , 87 Ala. 103 ( 1888 )

SOMERVILLE, J.

Where a defendant in a criminal prosecution elects to become a witness in his own behalf, as he may do under the statute, he waives the constitutional guaranty which protects him from answering questions touching the merits of the case which may tend to criminate him. He may be examined by the State as to all material facts pertinent to his guilt, and his failure to explain or rebut any criminating fact, where he reasonbly can do so, is a circumstance which may be considered by the jury as prejudicial to his innocence. This being so, it is clearly in reason, that his silence or refusal to testify as to such fact may become the subject of legitimate criticism on the part of the State’s counsel, just as the testimony of any other witness may be under like circumstances. And the guilt or innocence of the defendant is to be determined on the entire evidence, including the testimony of the defendant himself. The authorities fully sustain this view. — Clarke v. State, ante, p. 71, at present term; Stover v. People, 56 N. Y. 315; State v. White, 27 Amer. Rep. 137, note 144; Whart. C. Ev. (9th Ed.), §§ 432-3; Clarke v. State, 78 Ala. 474; 56 Am. Rep. 45.

It is only where the defendant fails to become a witness at all, or to request to become one, that section 4473 of the Code affords him any protection against the criticism of counsel. In such event, his failure to become a witness is not allowed to create any unfavorable presumption against him, nor to be the subject of any comment by counsel. — Crim. Code, 1886, § 4473.

The charge requested by the defendant was based on the false idea, that nothing the defendant said, or failed to say, of a criminative character, should be allowed to have any weight whatever with the jury in securing his conviction; and erroneously affirmed, that they should acquit him, unless they are satisfied beyond a reasonable doubt of his guilt by other evidence in the case, irrespective of his own testimony on the stand, including any implied admission of guilt. The charge was palpably erroneous, and was properly refused.

Affirmed.