Cole v. State

75 Miss. 142

Opinion

Whitfield, J.,

delivered the opinion of the court.

Pretermitting an expression of opinion on any other error assigned, save the one that the district attorney commented on the failure of the defendant to introduce his wife as a witness in his own behalf, and drew inferences therefrom, we are constrained to hold, on the inconclusive character of the testimony in this case, as against Cole, that this was fatal error. There is an obvious distinction between mere general argument on the part of the district attorney outside the record, and drawing inferences unfavorable to a defendant, based upon his failing to do that which the law, on the grounds of public policy, gives him the option to do or not, as he may elect — -as, for example, the option to introduce or not his wife as a witness in his favor. This legal privilege the law gives him, and the court which tries him is under the duty of securing to him, unimpaired by such adverse comment, to the end that he have a fair and impartial trial. Johnson v. State, 63 Miss., 316-317.

Reversed.