Sanders v. State

73 Miss. 444

• Court: Mississippi Supreme Court
• Decided: October 15, 1895
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The judgment in this case must be reversed, and a new trial awarded, because counsel for the state, in his argument before the jury, commented upon the failure of appellant to testify. The statute expressly declares that ‘ ‘ the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.” It is true, the court promptly rebuked counsel, and directed the jury to disregard the fact alluded to, and that counsel then asked that his remarks be considered as withdrawn. But, as we have heretofore decided, this did not cure the error. Reddick v. State, 16 So. Rep., 490. As was there said: “The statute forbids absolutely any comment on the failure of the accused to testify, and it is the right of every person charged with crime to insist that he enjoy this statutory immunity from criticism by hostile counsel, and the disregard of this plain statute, and of the decisions of this court upon it, by the state’s own counsel, must reverse the judgment appealed from in this case.”

Reversed.