Commonwealth v. Scott , 1877 Mass. LEXIS 249 ( 1877 )

Gray, C. J.

By our system of jurisprudence, the government has no right to interrogate a person accused of crime, or to compel him to testify, but must sustain its charge by independent evidence. The accused has the right to simply deny his guilt, and to rely upon the legal presumption of his innocence, until he is proved to be guilty. In accordance with this ancient rule of the common law, the Constitution of the Commonwealth declares that no subject shall be compelled to accuse or furnish evidence against himself. Declaration of Rights, art. 12. The statutes allowing persons charged with the commission of crimes or of-fences to testify in their own behalf were passed for their benefit and protection, and clearly recognize their constitutional privilege, by providing that their neglect or refusal to testify shall not create any presumption against them. Sts. 1866, e. 260; 1870, c. 393, § 1, .1. 3. And this court has decided that such silence cannot be taken into consideration by the jury in determining whether a defendant is or is not guilty, and that an equivocal instruction upon this matter entitles the defendant to a new trial; Chief Justice Chapman saying, “ It is important that courts should carefully guard his constitutional right.” Commonwealth v. Harlow, 110 Mass. 411.

As there is danger that the jury, knowing that the law now permits a defendant to testify, may draw inferences against him from his omission so to do, his counsel may properly, in addressing the jury, insist and enlarge upon his constitutional and legal right in this respect. When the counsel for the defendants in the present case went farther, and referred to his own opinion and practice upon the subject, and to what he supposed to have taken place in other cases, he might well have been checked by the court. But the absolute exemption, secured to the defendants by the Constitution and laws, from being compelled to testify, and from having their omission to do so used in any way to their detriment, could not be affected by superfluous or irregular suggestions of their counsel in the heat of argument. That exemption could only be waived by each defendant’s own election to avail himself of the statute, and to go upon the stand as i witness. Commonwealth v. Nichols, 114 Mass. 285.

The course of the closing argument for the prosecution tended to persuade the jury that the omission of the defendant's to testify implied an admission or a consciousness of the crime charged; and the presiding judge, in permitting such a course of argument, against the objection of the defendants, and in ruling that the prosecuting attorney had a right to comment on the reasons which the defendants’ counsel gave for their not going upon the stand and testifying in their behalf, and also to give the reasons which the government contended really existed for their not testifying, committed an error which was manifestly prejudicial to the defendants, and which obliges this court to set aside the verdict and order a new trial.

This renders it unnecessary to consider the other questions presented by the bill of exceptions. Some of them are like those which have been passed upon in the other case against the same defendants, ante, 222. And the remaining questions of evidence, as well as that relating to a peremptory challenge by the Commonwealth of a juror who had been sworn, may not be presented again in the same form. Exceptions sustained.