Diegle v. State , 86 Ohio St. (N.S.) 310 ( 1912 )

Judgment affirmed.

Shauck, Price, Jopinson and Donahue, JJ., concur. Davis, C. J., dissenting:

I assume that the jury may have found correctly upon the facts. But I do not concur in this judgment for the following reasons: First, misconduct by one of the prosecuting counsel in argument to the jury and in direct violation of the statute prohibiting comment on the failure of the accused to testify; not being of the opinion that any admonition by the court could take the prejudice created by such comments out of the mind of the jury; and, second, because I cannot concur, in the breadth with which it seems to be adopted by the majority, in the doctrine of enticement by the state. The attorney general and prosecuting attorney insisted that the unreported case of Fox v. The State, 53 Bull., 28, which was heard upon a motion for leave to file a petition in error, is in all its essential facts identical with this case. In that I agree. But I did not concur in the judgment in Fox v. The State, and see no additional reason to do so now.