Graham v. State

45 S.E. 616, 118 Ga. 807, 1903 Ga. LEXIS 717

Opinion

Lamar, J.

When declarations pointing to the guilt of the defendant are made in his presence, and under circumstances which ordinarily render it expedient and proper for him to make reply, and, with full opportunity to explain, he says nothing in denial or explanation, the fact of his silence may be admitted for consideration by the jury. But where he has been arrested, and nothing is said to him, or in his presence, calling for a denial, the mere fact that he says nothing should not be used to his prejudice; and to permit an argument to be based thereon but emphasizes the error in admitting the testimony. If a defendant on trial stands mute or fails to make the statement permitted by the statute, this can not be made the basis of comment by the solicitor-general. Penal Code, § 947; Robinson v. State, 82 Ga. 535. “The law does not favor convictions based upon confessions, and least of all, upon implied confessions.” Ware v. State, 96 Ga. 352; Penal Code, § 1003; Brantley v. State, 115 Ga. 230 (2); Bell v. State, 93 Ga. 557; 1 Bish. Cr. Proc. (4th ed.) § 1254.

Judgment reversed.

All the Justices concur.