Nowlin v. State , 7 Okla. Crim. 27 ( 1911 )

This court does not profess to be infallible. We are always ready and anxious to correct any error which we may have made. We reaffirm the views expressed in the original opinion, except that we find that we overlooked an exception which is properly incorporated in the record, although it is not in that portion of the record where it should have been placed.

In considering the objection to alleged improper remarks made by the county attorney, we examined that portion of the record which follows the instructions of the court, because the instructions of the court necessarily precede the argument of counsel. We there found a number of affidavits as to the alleged improper remarks of the county attorney. For the reasons given in the original opinion, we held that these remarks so presented could not be considered; but in the motion for a rehearing our attention is called to the fact that in that portion of the record which immediately follows the testimony given in the trial of the case, and which precedes the instructions of the court, there is an exception, properly incorporated in the record, in which is presented objections made to the argument of the county attorney and the rulings of the court thereon, in which it is shown that the county attorney called attention to the fact that appellant did not testify on the trial. It was a controverted fact in the case as to whether or not appellant left the barn on the morning on which the whisky is alleged to have been sold. It is shown that the county attorney in his argument to the jury said that, if appellant had not left the barn as testified to by the state's witness, he (appellant) would have been the best witness as to that fact. Section 6833, Comp. Laws 1909, is as follows:

"In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial."

It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit. See Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Brownv. State, 3 Okla. Cr. 445, 106 P. 808.

For these reasons, the motion for a rehearing is sustained, and the judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.