Summary
In Spencer v. State, 128 So. 770, this Court held that the refusal of an instruction to the effect that the jury should not draw unfavorable inference because defendant did not testify was harmless, the defendant's guilt being manifest.
Summary of this case from Wood v. StateOpinion
No. 28721.
June 9, 1930. Suggestion of Error Overruled June 26, 1930.
CRIMINAL LAW.
Refusing instruction jury could not draw unfavorable inference because defendant did not testify held harmless, where defendant's guilt was manifest.
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Harry K. Murray, of Vicksburg, for appellant.
An instruction that the court instructs the jury for the defendant that they as jurors have no right under the law to draw any unfavorable inference against the defendant because he did not testify in this case should have been given. Sec. 1918, Code 1906, sec. 1651, Hemingway's Code 1927; 16 Corpus Juris 1021, secs. 2448, 18; Haynes v. State, 27 So. 601; 14 R.C.L., p. 757, par. 26; Standard Encyclopedia of Procedure, Vol. 13, page 919; Randall's Instructions to Juries, Volume 3, p. 2214, sec. 1968; Funches v. State, 87 So. 487; Smith v. State, 97 So. 4.
Geo. T. Mitchell, Attorney-General, and Forrest B. Jackson, Assistant Attorney-General, for the state.
The instruction complained of might properly have been given under section 1918, Code of 1906 (Hemingway's Code, section 1578), but a failure to give it will necessitate a reversal of the verdict only when it affirmatively appears from the record that the appellant was prejudiced thereby. Rule 11 (72 So. VII). Funches v. State, 125 Miss. 140, 87 So. 487. All that appears here in this case is the refusal of the instruction.
Smith v. State, 97 So. 4, 132 Miss. 521.
Spencer was indicted, tried, and convicted on a charge of practicing medicine without a license, and sentenced to a term of thirty days in jail, from which judgment appeal is prosecuted here.
The evidence in this case fully warrants the verdict of the jury, which was correct, as is demonstrated by the examination in chief and the cross-examination of Pearl Lewis, by the medicine prescribed, and by the label thereon. A fair jury could not well have reached any other conclusion.
Of the assignment of error, based upon the refusal of the court to grant the following instruction, "The court instructs the jury for the defendant that they as jurors have no right under the law to draw any unfavorable inference against the defendant because he did not testify in this case;" we have only to say that the defendant's guilt was manifest, and that, while it may have been error to refuse this instruction, yet, in our view the error complained of is not prejudicial, because it does not affirmatively appear from the record that the appellant was prejudiced thereby. Funches v. State, 125 Miss. 140, 87 So. 487.
It appears to us that the defendant in this case is guilty as charged. There does not appear any comments of counsel or other matter in the record prejudicial to the rights of the defendant. He has had a fair trial.
Affirmed.