Opinion
No. 38901
Decided October 13, 1965.
Criminal law — Failure of accused to testify — Comment by prosecuting attorney and charge to jury thereon — Violation of constitutional rights — Cause remanded for new trial.
APPEAL from the Court of Appeals for Marion County.
ON REMAND from the Supreme Court of the United States.
Defendant was convicted under Section 2905.10, Revised Code, of procuring a female under 18 for purposes of prostitution, harboring her in a house of assignation and procuring her for intercourse with others. That conviction was affirmed by the Court of Appeals. This court dismissed defendant's claimed appeal as of right on the ground that no substantial constitutional question was involved and denied defendant's motion for leave to appeal.
The Supreme Court of the United States has vacated the judgment of this court and remanded the cause to this court "for further consideration in light of Griffin v. California" (1965), 14 L. Ed. 2d 106.
Mr. Robert O. Stout, prosecuting attorney, for appellee.
Mr. George S. Roest, for appellant.
In Griffin, the Supreme Court of the United States held that "comment" by the trial court and by the prosecutor "on the [defendant's] failure to testify violated the self-incrimination clause of the Fifth Amendment which we made applicable to the states by the Fourteenth," even though such comment was authorized by the provisions of the California Constitution.
In the instant case, the prosecutor's brief states:
"The defendant did not testify at the trial. The prosecuting attorney, in closing argument, commented on the defendant's failure to testify. The court referred to such fact in the charge to the jury."
We are therefore required to reverse the judgment of conviction and remand the cause to the Common Pleas Court for a new trial.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.