State v. Johnson , 26 Del. 515 ( 1912 )

At the close of the testimony, and arguments of counsel to the jury, the court gave the usual charge to the jury as in similar cases, and the jury returned a verdict of guilty. Counsel for defendant moved for a new trial and in arrest of judgment, and filed several reasons therefor. The only reason relied upon was that the Attorney General in his argument to the jury, in the presence of the court, made use of the following language: “The defendant did not go on the stand and deny that he gave the receipt to her, Lizzie Burton.”

It was urged that this comment was in direct violation of Chapter 777, Volume 19, Laws of Delaware, Revised Code 798, which extends to accused persons the right to testify in their own behalf, but provides “that a refusal or failure to testify shall not be construed or commented upon as an indication of guilt.” It was insisted that the remark was prejudicial to the defendant and against the express policy of the statute. The cases of Austin v. The People, 102 Ill. 261, and Com. v. Scott, 123 Mass. 222, were relied upon in support of the motions.

Boyce, J.

:—Immediately upon the remark being made, which

is relied upon in support of the motions, one of counsel for the defendant objected, and the Attorney General withdrew the same as an inadvertence, and requested the jury to disregard it wholly in the consideration of the case. The court then and there instructed the jury to the'same effect. Again, in charging the jury after the close of the testimony, and arguments of counsel, the court expressly directed the jurors’ attention to the said statute and instructed them that the failure of the defendant to testify should not influence them in any degree in reaching their verdict, as under the statute a refusal or failure to testify could not be construed or commented upon as an indication of guilt.

We think the cases cited for counsel for the defendant are inapplicable to the facts in this case. We heard the evidence and we are clearly of the opinion that it warranted "the verdict of guilty. The Supreme Court of this state, on the writ of error, in the case of Fisher v. State, 1 Penn. 388, refused to reverse the judgment of the court below, because they did not find that the admission of the evidence objected to was prejudicial to the defendant below. We think in this case that the remark of the Attorney General, having been expressly withdrawn immediately after it was made and the jury being cautioned not to consider it in their determination of the case, was not prejudicial to the defendant under all the circumstances." Being convinced as we havé already stated that the evidence warranted the verdict, we do not think it should be disturbed. The motions are therefore denied.