People v. Higgins

HART, J.

The defendant was convicted of the crime of burglary of the first degree, and prosecutes this appeal from the judgment and the order denying his motion for a new trial.

The claim for a reversal of the judgment is based, principally, upon alleged misconduct of the district attorney in his address to the jury. Objection is also urged against one of the instructions given by the court.

The evidence presented by the record is conclusive of the guilt of appellant. The place alleged and proven to have been burglariously entered by the accused was a saloon, located in a small town called Bloomfield, in Sonoma county. In addition to a number of strong circumstances pointing to the defendant’s guilt, two witnesses positively testified that they saw him in the saloon after the proprietor had closed the establishment for the night. The defendant did not take the witness-stand, nor did he offer any testimony contradictory to that introduced by the people.

During the course of his argument to the jury, the district attorney, among other things, said: “Then, in addition to that was the other bottle which he has not yet found, and two beer bottles which were found, which correspond with the bottles which he had in stock. Now, then, it cannot be presumed for one

moment—the defendant himself and no one in his behalf have seen fit to testify, or to

contradict—” At this juncture the attorney for the defendant interposed an excep

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tion to the remarks of the district attorney, whereupon the court thus admonished the jury: “Yes, that should not be referred to at all. He is not called upon to take the stand. Gentlemen of the jury, you will entirely disregard that. You have no right to infer anything by reason of the matter commented upon. Do not touch that, Mr. Hoyle.”

In view of the convincing character of the testimony presented by the people against the defendant, we do not think we would be justified in holding that the remarks of the district attorney involved misconduct on his part prejudicial to the accused. The district attorney had no right to refer either directly or indirectly to the defendant’s silence. Under the law it was defendant’s right either to become a witness or to refuse to take the stand, and his omission to testify could not, legally, be the basis of an unfavorable inference against him. And, in a case where the evidence is so slight that a verdict either of conviction or acquittal might be warranted, unfavorable criticism by the prosecuting officer in his address to the jury of the defendant’s omission to testify in his own behalf ought to be, and we think would undoubtedly be, held sufficient to justify a reversal of the judgment. In the case at bar, however, under the evidence as disclosed by the record, the jury could have consistently returned no other verdict against the accused than the one found. Besides, the court promptly and with clearness instructed the jury that reference by the district attorney to the failure of the defendant to testify for himself was without legal justification, and that no inference militating against the appellant could lawfully be drawn by the jury from that circumstance.