Opinion
7 Div. 788.
June 30, 1931. Rehearing Denied August 4, 1931.
Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.
Dewey Lucas was convicted of violating the prohibition law, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Lucas v. State, 223 Ala. 677, 137 So. 903.
L. H. Ellis, of Columbiana, for appellant.
A defendant in a criminal case shall not be compelled to give evidence against himself; and the failure of a defendant to testify in his own behalf shall not create any presumption against him nor be subject to comment by counsel. Const. 1901, § 6; Code 1923, § 5632. If improper remarks made by a solicitor in his argument to the jury in a criminal case are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence, a new trial should be granted. Bestor v. State, 209 Ala. 693, 96 So. 899.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The state made out its case by the testimony of one witness. The facts as testified to were not denied, nor did the defendant testify in his own behalf. In his opening argument to the jury the solicitor said: "Why didn't the defendant go on the stand and testify in his own defense, if he was not guilty." This remark was objected to by defendant, and the objection was promptly sustained. The defendant then moved for a mistrial, which motion was overruled; the court instructing the jury as follows: "Gentlemen, under the law, the defendant does not have to take the stand unless he elects to do so, and if he does not go on the stand he is not held responsible for it, and his not going on the stand is not to be considered by you in this case. That is his privilege, he can either take the stand in his own defense or he can remain off the stand if he chooses, and you are not to consider the fact in this case that the defendant has not taken the stand."
The remark of the solicitor was error and so recognized by the trial judge. Under the evidence, the jury could have rendered but one verdict, and the fine of $75 assessed by them would not indicate that the remark of the solicitor had influenced their minds to such extent as to be reflected in the verdict. The court did all that was necessary in the premises, and did not err in refusing to grant the motion for a mistrial.
We find no error in the record, and the judgment is affirmed.
Affirmed.