George Howard, Jr., Justice.
The Truckers’ Inn on Highway 79 North in Jefferson County was robbed by a lone black gunman on April 1, 1977. Some 16 hours later, appellant, Felton Adams, was arrested. A dirty, white bank bag (money bag) was found in his pocket at the time of the arrest. Marzella Williams, an employee at Truckers’ Inn, identified appellant as the robber. Furthermore, some fingerprints taken from a cup at the Truckers’ Inn that the robber had used immediately prior to the robbery were identified as appellant’s. The bank bag was identified as being similar to the one used in the robbery.
From a judgment entered upon a jury verdict finding appellant guilty of a charge of aggravated robbery and also on a charge as an habitual criminal, appellant appeals raising numerous issues for reversal.
During closing argument, the prosecuting attorney made the following statement before the jury:
“. . . To convict him (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?” (Emphasis supplied)
It is well settled that comment on the failure of a defendant to testify in a criminal case is violative of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution which is applicable to States by the Fourteenth Amendment to the United States Constitution. Malloy v. Hogan, 378 U.S. 1 (1965); Griffin v. California, 380 U.S. 609 (1965).
In Miller v. State, 239 Ark. 836, 394 S.W. 2d 601 (1965), the defendants did not testify in the case. Over objections, the Court instructed the jury that it was the privilege of the defendants to testify in their own behalf or to decline to testify. In his argument to the jury, the prosecuting attorney specifically called this instruction to the attention of the jury, repeated it and said: “You are instructed, this is a privilege to them to either testify or not to testify. That is what the Court says in that instruction.” We said, in Miller, “Obviously, by arguing this instruction to the jury in that manner, attention was called to the fact that defendants had not taken the stand in their own behalf. This was error.”
In Evans & Foust v. State, 221 Ark. 793, 255 S.W. 2d 967, we said:
“Our law wisely provides failure of a defendant to testify shall not create any presumption against him. The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call a jury’s attention to the fact that a defendant has not testified.”
It is readily apparent from what we have said in the two cases just cited, a defendant’s privilege not to testify and the prohibition imposed on the state to refrain from using any words calculated to call a jury’s attention to the fact that a defendant has not testified, makes this privilege a fundamental constitutional right and when this right has been violated by an over zealous prosecuting attorney, prejudice is presumed and an instruction from the trial court cannot eliminate the damage which has already occurred. Consequently, the granting of a request for a mistrial is the only solution to correct the prejudicial error.
In an effort to cure the prejudicial remarks by the prosecuting attorney, the trial court, after objection and request of counsel for appellant, gave the following instruction, but the instruction merely reemphasized the fact in the minds of the jurors that the defendant had not testified:
“THE COURT: In the event the jury didn’t understand the instructions, I will paraphrase it by saying the burden is on the State to prove that the defendant is guilty beyond a reasonable doubt. The defendant didn’t request, but I will instruct you at Mr. Morehead’s request that the defendant is not required to testify. He may do so if he likes, but you are not to take that into consideration in arriving at your verdict in this case, neither does the defendant have to call any witness on his behalf unless he wants to. You are not to consider that as evidence against the defendant. Go ahead.”
It is apparent that in light of the prosecuting attorney’s comment the jury could have surmised appellant’s failure to testify was an admission of guilt. Thus, the exercise of a constitutional right could have been damaging evidence against the appellant. The state contends that the judge’s charge, as set out above, cured any harmful effect of the comment. It is conceded that the trial judge may have done all he could under the circumstances, his charge, however, only would have vindicated the adverse effect of a comment with respect to appellant’s duty to take the stand. The judge’s charge did not cure the adverse inference the jury could have drawn on the issue of guilt or admission of guilt.
The error complained of here by appellant is a denial of a right guaranteed against invasion by the Fifth and Fourteenth Amendments to the United States Constitution and appellant is entitled to be free from penalties or sanctions that may have been influenced by his failure to testify in his criminal trial. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967).
In Chapman v. California, supra, the United States Supreme Court said, among other things:
“. . . [BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless error beyond a reasonable doubt.” See also: Fahy v. State of Connecticut, 375 U.S. 85.
We cannot say, from reviewing this record, that the error complained of was harmless beyond a reasonable doubt, or that there is not a reasonable possibility that the remarks complained of on the part of the prosecuting attorney might have contributed to appellant’s conviction, accordingly, we reverse on this ground only.
We recognize, as we must, that there exists some inconsistency in our cases dealing with the extent and latitude to which a prosecuting attorney is permitted in arguing to the jury the posture of the state’s case or in summarizing the evidence when a defendant has failed to take the witness stand in his own behalf. In Harris v. State, 260 Ark. 646, 543 S.W. 2d 459, we found that the following statement did not constitute prejudicial comment upon appellant-defendant’s failure to testify:
“Possession? You heard the three agents get on this stand and say that the hundred pounds of substance was taken from these two defendants out there on Cato Springs Road on April 29th, 1974. There has been absolutely no testimony to contradict that. I don’t think that is even an issue at this point. ...” (Emphasis supplied)
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George Howard, Jr., Justice.
The Truckers’ Inn on Highway 79 North in Jefferson County was robbed by a lone black gunman on April 1, 1977. Some 16 hours later, appellant, Felton Adams, was arrested. A dirty, white bank bag (money bag) was found in his pocket at the time of the arrest. Marzella Williams, an employee at Truckers’ Inn, identified appellant as the robber. Furthermore, some fingerprints taken from a cup at the Truckers’ Inn that the robber had used immediately prior to the robbery were identified as appellant’s. The bank bag was identified as being similar to the one used in the robbery.
From a judgment entered upon a jury verdict finding appellant guilty of a charge of aggravated robbery and also on a charge as an habitual criminal, appellant appeals raising numerous issues for reversal.
During closing argument, the prosecuting attorney made the following statement before the jury:
“. . . To convict him (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?” (Emphasis supplied)
It is well settled that comment on the failure of a defendant to testify in a criminal case is violative of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution which is applicable to States by the Fourteenth Amendment to the United States Constitution. Malloy v. Hogan, 378 U.S. 1 (1965); Griffin v. California, 380 U.S. 609 (1965).
In Miller v. State, 239 Ark. 836, 394 S.W. 2d 601 (1965), the defendants did not testify in the case. Over objections, the Court instructed the jury that it was the privilege of the defendants to testify in their own behalf or to decline to testify. In his argument to the jury, the prosecuting attorney specifically called this instruction to the attention of the jury, repeated it and said: “You are instructed, this is a privilege to them to either testify or not to testify. That is what the Court says in that instruction.” We said, in Miller, “Obviously, by arguing this instruction to the jury in that manner, attention was called to the fact that defendants had not taken the stand in their own behalf. This was error.”
In Evans & Foust v. State, 221 Ark. 793, 255 S.W. 2d 967, we said:
“Our law wisely provides failure of a defendant to testify shall not create any presumption against him. The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call a jury’s attention to the fact that a defendant has not testified.”
It is readily apparent from what we have said in the two cases just cited, a defendant’s privilege not to testify and the prohibition imposed on the state to refrain from using any words calculated to call a jury’s attention to the fact that a defendant has not testified, makes this privilege a fundamental constitutional right and when this right has been violated by an over zealous prosecuting attorney, prejudice is presumed and an instruction from the trial court cannot eliminate the damage which has already occurred. Consequently, the granting of a request for a mistrial is the only solution to correct the prejudicial error.
In an effort to cure the prejudicial remarks by the prosecuting attorney, the trial court, after objection and request of counsel for appellant, gave the following instruction, but the instruction merely reemphasized the fact in the minds of the jurors that the defendant had not testified:
“THE COURT: In the event the jury didn’t understand the instructions, I will paraphrase it by saying the burden is on the State to prove that the defendant is guilty beyond a reasonable doubt. The defendant didn’t request, but I will instruct you at Mr. Morehead’s request that the defendant is not required to testify. He may do so if he likes, but you are not to take that into consideration in arriving at your verdict in this case, neither does the defendant have to call any witness on his behalf unless he wants to. You are not to consider that as evidence against the defendant. Go ahead.”
It is apparent that in light of the prosecuting attorney’s comment the jury could have surmised appellant’s failure to testify was an admission of guilt. Thus, the exercise of a constitutional right could have been damaging evidence against the appellant. The state contends that the judge’s charge, as set out above, cured any harmful effect of the comment. It is conceded that the trial judge may have done all he could under the circumstances, his charge, however, only would have vindicated the adverse effect of a comment with respect to appellant’s duty to take the stand. The judge’s charge did not cure the adverse inference the jury could have drawn on the issue of guilt or admission of guilt.
The error complained of here by appellant is a denial of a right guaranteed against invasion by the Fifth and Fourteenth Amendments to the United States Constitution and appellant is entitled to be free from penalties or sanctions that may have been influenced by his failure to testify in his criminal trial. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967).
In Chapman v. California, supra, the United States Supreme Court said, among other things:
“. . . [BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless error beyond a reasonable doubt.” See also: Fahy v. State of Connecticut, 375 U.S. 85.
We cannot say, from reviewing this record, that the error complained of was harmless beyond a reasonable doubt, or that there is not a reasonable possibility that the remarks complained of on the part of the prosecuting attorney might have contributed to appellant’s conviction, accordingly, we reverse on this ground only.
We recognize, as we must, that there exists some inconsistency in our cases dealing with the extent and latitude to which a prosecuting attorney is permitted in arguing to the jury the posture of the state’s case or in summarizing the evidence when a defendant has failed to take the witness stand in his own behalf. In Harris v. State, 260 Ark. 646, 543 S.W. 2d 459, we found that the following statement did not constitute prejudicial comment upon appellant-defendant’s failure to testify:
“Possession? You heard the three agents get on this stand and say that the hundred pounds of substance was taken from these two defendants out there on Cato Springs Road on April 29th, 1974. There has been absolutely no testimony to contradict that. I don’t think that is even an issue at this point. ...” (Emphasis supplied)
We do not consider the statement “There has been absolutely no testimony to contradict that” as prejudicial comment upon appellant-defendant’s failure to testify, inasmuch as counsel for appellant-defendant, indeed, was afforded the opportunity to cross-examine all of the state’s witnesses for the purpose of developing any inconsistencies or contradictions. Therefore, if counsel for appellant-defendant discovered no contradictions in the state’s case, indeed, the prosecuting attorney had every right to call to the jury’s attention that there existed no contradictions in the state’s case. We cannot visualize any valid objection to a remark of this nature when it cannot be construed as calculated to call a jury’s attention to the fact that a defendant has failed to take the witness stand.
On the other hand, the remarks of the prosecuting attorney in the instant case, namely, “Ttf convict him, (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?” can be characterized only as calling to the jury’s attention that appellant had not taken the witness stand to testify.
We emphasize that an expression on the part of the prosecuting attorney attributable to the weight to be given to the evidence as distinguished from an expression or gesture indicating to the jury that the defendant has not taken the witness stand does not offend the posture taken by the Court today in this case. Evans & Foust v. State, supra; Miller v. State, supra.
We have carefully reviewed the other points asserted by appellant for the reversal of his conviction and we are persuaded that such claims are not meritorious and, accordingly, we find no error in these asserted claims. We make this observation in order to avoid any misunderstanding as to the Court’s position on these issues in the event of a retrial of this case.
Reversed and remanded.
Harris, C.J., and Fogleman, J., dissent.