Gossett v. State , 65 Ark. 389 ( 1898 )

Riddick, J.,

(after stating the facts.) We are of the opinion that the argument of the attorney for the state was improper. The defendant denied fully any knowledge of the stolen property or any connection with the taking thereof. He admitted that he had about two gallons of whisky in his pos-. session about the time the two barrels of whisky were said to have been stolen from the cars,.but objected t'o telling how he obtained it, on the ground that his answer would tend to convict him of the crime of illicit distilling, and, the defendant being at that time under indictment in the federal court for illicit distilling, the circuit judge sustained his objection, and refused to order him to answer.

When the accused testified in his own behalf, his testimony is the subject of fair comment on the part of the state's attorney, the same as the testimony of other witnesses. (1 Thompson, Trials, § 646.) If the attorney for the state had only called the attention of the jury to.the fact that defendant had not told from whom he obtained the two gallons of whisky, and asked them to consider his failure to tell in weighing his testimony, we are not sure there would have been ground for objection; but he went much further than this, and insisted that the refusal of defendant to answer on the ground that his answer would tend to convict him of another crime was evidence of his guilt at the time charged here. He put defendant in the same position as if he had refused to testify because his answer would convict him of the crime under investigation, or as if he had refused to answer without cause. But defendant had already testified that he had no knowledge of the whisky stolen, and knew nothing about it, and there was nothing to show or tending to show that his refusal to testify was based on any other ground than the one stated by him, except the testimony of the witness for the state. On the contrary, the defendant, after having, stated his grounds for refusing to answer, expressed a readiness to answer the question if ordered to do so by the court. We are therefore of the opinion that the jury had no right to draw a conclusion of guilt from his refusal to answer a privileged question. His refusal to answer under such circumstauces might affect his credibility as a witness, but was no evidence of his guilt of the crime charged. (1 Thompson, Trials, § 989; People v. Wilson, 55 Mich. 506.)

The argument of the prosecuting attorney to that effect was improper, and the ruling of; the court refusing to interfere and stop his argument was erroneous, and, we think, under the facts of this case, prejudicial to defendant. We are aware that courts should proceed with caution, in reversing a judgment of conviction on account of an improper argument of an attorney, but it will be noticed that we have here, not only an improper argument, but, as we think, an erroneous ruling ofj the court allowing and permitting, such argument. If the guilt of the defendant was entirely clear, we might not feel justified in ordering a new trial, but the connection of defendant with the crime rested entirely upon the testimony of one witness for the state, between whom and defendant there was shown to have existed a state of bitter enmity, and whose testimony was contradicted, and who was impeached in other ways. It was still a question with the jury whether they would believe him or not; but, as the jury, under the . argument and ruling of the court thereon, may have treated the failure of the defendant to answer the question above referred to as a tacit confession of his guilt, and based their verdict upon such refusal, we think the judgment should be reversed, and a new trial had, and it is so ordered.