Smith v. State

delivered the opinion of the court.

This case is plainly covered by the rule announced in Hoff v. State, 83 Miss., 488 (35 South. Rep., 950). The record shows that there were only four persons present on the occasion of the homicide — the defendant, the deceased, and two state witnesses. *628It appears that both the eyewitnesses were introduced by the state upon the trial, and examined at length. Consequently, the statement of the district attorney that “no one had denied that he [the defendant] killed Buchanan,” and the further statement that “no one had denied that the witness, Hobson, was sober,” can only be reasonably construed as comments upon the failure of the defendant to testify in his own behalf. As the record showed that all of the eyewitnesses, except the defendant, had testified, this comment upon a failure to deny the facts of the homicide, as testified to by the witnesses, necessarily directed the attention of the jury to the fact that the defendant had not availed himself of the personal privilege of testifying in his own behalf; the impression irresistibly conveyed by such statement being that a failure to deny should be construed as a silent admission — the very thing which the law is intended to guard against. As long as the law stands as now written, it prohibits any comment upon the failure of a defendant to testify; and this is true without regard to the character of the comment or the motive or intent with which it is made. We must construe the law as written.

Reversed and remanded.