Minor v. State , 120 Ga. 490 ( 1904 )

Simmons, C. J.

1. In the trial of a criminal case in which the accused fails to make a statement, it is improper and calculated to injure the accused for the State’s counsel to say to the jury in his argument: “ There sits the man accused of this dreadful crime, and don’t even come on the stand to deny it, though his constitutional right allows him to make his statement and deny his guilt.” Bird v. State, 50 Ga. 585; Robinson v. State, 82 Ga. 535; O'Dell v. State, 120 Ga. 152. Counsel for the accused having objected to the remark and moved for a mistrial, it was error to refuse the motion, unless the court, by appropriate instructions, obviated any injurious effect to the accused from the remarks made. The withdrawal of the remarks by the State’s counsel and the court’s admonishing him to confine himself to the evidence were not sufficient to remove the effect of the improper argument.

2. It is error to charge, without qualification, that “positive evidence is stronger than negative.” Southern Ry. Co. v. O'Bryan, 115 Ga. 669.

Judgment reversed.

All the Justices concur.