People v. Hoch

The defendant was charged in the indictment with the crime of murder in the first degree for having with intention and deliberate design killed Minnie Ingersoll by shooting her with a rifle. Being arraigned, he interposed a plea of “not guilty, and insanity,” and, being tried upon the charge, the jury rendered a verdict of murder in the first degree. Upon this appeal from the judgment of conviction it is argued in behalf of the defendant that the evidence does not justify the verdict rendered, and that errors were committed upon the trial, which require a reversal of the judgment and the ordering of a new trial.

The foundation of the case for the people against the defendant rests in his confession, testified to by his sister and her husband as having been made to them. This was within an hour or two of the homicide; and the evidence of other witnesses concerning the defendant’s acts upon that day is so corroborative of material facts detailed in the narrative of the defendant’s confession as to evidence its truthfulness. The manner of the killing of the deceased was shown by the evidence of an elderly man, named Nicholas Strife, who was with her at the time. They were engaged in milking, upon what was known as the “ Strife .Farm,” in the evening of July 10, 1895, and, as they were passing, with

Minnie Ingersoll, the deceased, was an unmarried girl, about ■seventeen years old, who resided with her brother, then managing the Strife farm. The defendant was a single man of about thirty-five years of age, and had been paying his attentions to Minnie, ■contrary to the wishes of her family. The shooting occurred at about half-past seven in the evening, and later, between half-past eight and nine o’clock, the defendant appeared at the house of Charles Graves, his sister’s husband, about three and one-half miles from the Strife farm, and gave to Mr. and Mrs. Graves his watch, pocketbook, and sundry other personal effects, with the remark he did not want them any more. He also went out, and brought into the house a Winchester rifle, and gave it and a handful of cartridges to Mr. Graves, keeping with him a loaded revolver. Upon being pressed by Mrs. Graves to tell what he had been doing, he said he had shot Minnie Ingersoll and an old man. He described how he had waited about the farm buildings until the departure of some, persons whom he saw there, and then how that he got into the barn, and, when he saw the deceased coming towards him with a pail of milk, had shot her. The testimony was that he said, “I calculated to shoot her twice, and I hit Mr. Strife,” or somebody whom he did not then know, and that he said “he did not calculate to shoot him; he wanted to make sure work of her, and so he shot twice.” Upon being asked why he shot her, the defendant said, “If he couldn’t marry her, 'there shouldn’t any one else have her.” The confession of the defendant that he killed the deceased is testified to by Charles Graves and his wife, who also gave in evidence statements made

The defendant did not testify in his own behalf, and the evidence in his defense consisted mainly in the attempt to prove that he was irresponsible, because of insane mind. The evidence in that respect is not, in our opinion, entitled to much weight, and that the jury did not believe the defendant to have been insane is not surprising. Members of his family testified to acts and occurrences which either seem very trivial, or were quite compatible with a morose and willful character, combined with stupidity, or a low degree of intelligence. The father described what he thought to be a fit, when his son was twelve years of age, and incidents during boyhood of a seemingly trivial nature, showing, possibly, weak health, and a dull temperament. A brother told of defendant’s falling from a horse while a boy, and striking his head upon a stone, which, however, did not cause any serious injury at the time, or necessitate a doctor’s services. He also related an instance, within a year, of seeing defendant abusing himself.

Upon the trial, medical experts were examined on either side, and gave their answers to hypothetical questions as prepared and propounded. The usual conflict of opinion occurred, which is constantly seen upon1 such trials, and which tends not only to bring discredit upon a learned profession, but, more seriously, to-embarrass the search after the truth, in which the tribunal is engaged, by confusing and darkening the minds of the jurors with opinions upon the scientific questions before them, which are expressed as previously pledged to either side. The fact that the rule which permits expert testimony in such cases works, in practice, badly for the interests of justice, cannot be so much attributable to the inexactness of the science in which the witness is assumed to be skilled as to the pre-enlistment of his opinion by the party. That the procedure in such respects is defective is also true. However, the issue of sanity was submitted to the jury, who were to finally determine it upon the evidence, and whoso determination will not be interfered with where the evidence was-in fair conflict, and permitted of opposing inferences. In the absence of such elements from the case as show that the verdict was against the weight of evidence, or that it seemed to have been influenced by some mistake, error, or prejudice, it will be regarded

Errors are alleged-in the brief to have affected, the -fairness of defendant’s trial, arid they were pressed upon us during the argument. Some are quite unimportant; others are technical, but are not raised by any objection and exception; while others, again,, which seemed grave when started in the argument of ;counsel, upon an examination of the record appear in quite a different light. The defendant’s counsel- has been somewhat more ingenious than ingenuous in the presentation of his client’s case. To instance the alleged errors in the impaneling of a jury: One concerned a question to Rowsam, examined as to his qualifications as a juror, where the court confined its scope as requested by the district attorney. Not only was no exception taken, but; later on in the proceedings, and after the jury box was filled, by arrangement between the counsel, the juror Rowsam was excused. So in the case of one Adams, where the court excused him after he had stated his age to be sixty-five, there was no objection or exception,, whatever it may have been worth. Finally, in the case of Lanpher, who, after being examined as to his recollection of reading about the homicide, or the evidence taken before the coroner, was challenged by defendant for bias, there not only was no ruling by the-court, nor any exception, but, at the end of his examination, the defendant expressly accepted him as a juror. It is clear that if there was any error it was not made available by any exception, and it should be distinctly understood that, however great the latitude of power conferred upon 'this court by the statute, in the-revival of capital cases, to order new trials, that power is not called into" exercise by the appearance of some error in the conduct of

There are a number of other errors alleged to have been committed, which are not pointed out by exceptions, and they will not be noticed, both for that reason and because, if they might be re. garden as errors, they are utterly trivial, and could not affect the result. It is contended that because no order was made transferring the case from the court of oyer and terminer, in which the trial had been commenced, to the supreme court, on the first day of January, 1896, the date of the operation of the constitutional provision abolishing circuit courts and courts of oyer and terminer (section 6, art 6, Const. 1894), the proceedings thereafter were without jurisdiction. Overlooking the absence of any objection to raise the question, it is sufficient to say that'the constitutional provision expressly provided that the jurisdiction of those -courts “shall thereupon be vested in the supreme court.” What the people declared in that section of the revised constitution needs no order of the court to carry into effect. The highest authority in the state had decreed the abolition of certain courts, and the transfer of pending actions to the supreme court. Ho law, nor any order, could have added to the effective operation of the section upon the date fixed by its language. In that respect the constitutional provisión was a self-executing mandate, and it was not

It is urged that there was a fatal irregularity on the part of the jurors in their separation pending the trial* A juror being taken ill, the trial judge said he would put him in charge of a sworn officer, to enable him to consult a physician. Defendant’s counsel said there was no objection. Such juror remained in charge of a sworn constable over a day, the physician reporting him as too ill to come out. On the second day after, he took his seat, and the trial was proceeded with. Ho objection was made, and there was, in fact, no separation of the jury constituting the misconduct contemplated by section 465 of the Code of Criminal Procedure.. There is nothing to show that the sick juror was ever out of the charge of the officers, or that any communication was had with any person not connected with the trial. There was nothing in the incident which could have prejudiced the defendant. {

Objection was taken to a question upon the cross-examination of Dr. Crosby, who had been examined as an expert in behalf of the defendant. In the hypothetical question propounded to him by defendant it was stated that in 1887 he had shot and wounded the mother of a girl to whom he was engaged to be married; that he had been convicted and sent to prison; and that while serving his sentence he was regarded as peculiar and irrational, and was frequently found weeping without cause, and a keeper had “ reported him insane ”; and other facts concerning his conduct as a prisoner were stated. The witness answered that he might have been insane on the day of the tragedy. On cross-examination it appeared that the witness had examined the defendant for the people, while in jail, awaiting trial upon the previous charge, and he was asked to give his judgment, from his “ examination under his employment by the district attorney,” as to whether defendant was then sane or insane. Objection was made and placed upon the two grounds that the relation of physician and patient existed, and that it was not “such cross-examination as is allowed of an expert.” The court overruled the objection, and the defendant excepted. As the events of the former trial and conviction were introduced into and made a part of the hypothetical question intended to array the facts for the opinion of defendant’s insanity, it

Dr. Sawyer was the physician in charge of Auburn Prison, and his duties had familiarized him with cases of insanity; The district attorney showed that the witness had made an examination of the defendant, for the purpose of ascertaining his mental condition, just'before and during the trial. He had observed him from day to day, and he stated just what he-bad done in examining him. He was asked whether, in his opinion, the defendant was sane or insane, and the objection to the question was overruled. The criticism of the defendant’s-counsel is that the inquiry should be' as to his condition on the day of the homicide, and not at the time of the trial. Of course, the issue turns upon the prisoner’s mental condition at the time of the homicide,—whether he was laboring under such a defect of reason as to render him incapable of knowing the nature and quality of the homicidal act, or was incapable of knowing that it was wrong. But there is no-apparent reason, and I am aware of no authority, for holding that, in addition to all the other facts, the jury may not be informed, by one competent to speak, as to the mental condition of the defendant at the time of his trial. He stands before them accused of the-crime, with a plea of insanity to shelter him from a conviction at their hands, and in their consideration of his plea for exoneration no competent evidence bearing upon his mental condition at the time of the homicide or since should be excluded; and the evidence objected to certainly cannot be said to be prejudicial to any substantial rights of the accused, or ,to contravene the demands of justice. There seems to be no force in this objection whatever. Hor is the-further criticism of counsel of importance to consider,

When the counsel for the prosecution was closing his address to the jury, he used these words: “ The little mound under the snow alone knows, and the defendant will not speak.” Defendant requested that the “ court ask the jury to eliminate from their minds those words, or else that they be made a part of the record." The counsel for the prosecution said he was “ perfectly willing that they should be stricken out.'” The court not only so ruled, but, before submitting the case to the jury, charged them that it was of “ no legal consequence ” that “ the defendant did not testify in his own defense. In our country the defendant is not compellable to testify against himself on a criminal charge, * * * and our statute further provides that the fact that a person accused of crime declines to take the stand and testify in his own behalf shall not be considered against him.” Any prejudice to the accused from the improper allusion to the defendant’s silence was fully averted, not only by the action had in the presence of the jury in striking it out, but in the pointed remarks of the trial judge in submitting the issue to the jury.

No exception was taken by the defendant to the charge, and, after carefully reading and considering its language and terms, the conclusion must be reached that the jury could not have been led into error, or into any confusion of mind, by any observation of the trial judge. The defendant’s counsel, however, now, upon this appeal, indulges in various criticisms of the charge, some of which we shall answer, as briefly as possible. The trial judge is reported in the record, in defining the degrees of murder, to have read section 184 of the Penal Code, as follows: “ Such killing of a human being is murder in the first degree, when committed with the design to effect the death of the person killed, but without deliberation or premeditation." The error would be in the use of the word “first,” instead of second,”"in speaking of the degree. That he is correctly reported in simply incredible, -and the affida

Further criticism is made that the trial judge used language which indicated in his mind the belief that the defendant killed the deceased. This arises from misconception and partial reading. He had discussed the phase of the case upon the facts which the people claimed proved the defendant’s guilt, and, having done so, said : “We are now brought to the question, is the defendant excusable for killing the deceased, and protected by statute from all criminal punishment therefor? ” and he read section 21 of the Penal Code, which excuses an idiot, imbecile, lunatic, or insane person under specified conditions. There was no expression of opinion upon the fact of the defendant’s guilt, and the charge, up

Finally, the criticism is made that prejudice accrued to the accused from certain other language of the trial judge. He had remarked that “ Tlfe defendant has not given evidence on this trial himself; therefore the evidence of his former conviction cannot be regarded on any point except as you may deem it applicable on the insanity theory. It cannot be regarded as evidence of his commission of the crime at issue here.” Having said this, and forbidding any inferences as to guilt from the commission of a former crime (the evidence as to which, it will be remembered, was introduced by the defendant himself), he proceeded thus: “ I said the defendant did not testify in his own defense. Why did he not ? That is of no legal consequence. In, our country the defendant is not compellable to testify against himself on a criminal charge," and continued in words as previously given in this opinion. This was no injurious nor censorious comment upon the defendant’s refusal to testify. It was explanatory of his silence, and a statement of his legal right to remain silent as to the charge, which the people were bound to establish to be true beyond a reasonable doubt This was rather advantagenus than prejudicial to the defendant. The charge, on the whole, was eminently fair to the accused, and the portions now criticised would not have been the subject of any valid exception had the defendant’s counsel been so minded at the time.

Upon the trial of this action evidence was given tending to show that on the 10th day of July, 1895, at the town of Martinsburgh, county of Lewis, the defendant shot and killed one Minnie Ingersoll, under circumstances warranting the conclusion that he was guilty of- murder in the first degree. The main evidence for the defense related to the plea of insanity, which was interposed as a specification under the plea of not guilty, as authorized by section 336 of the Code of Criminal Procedure. The record discloses that when the counsel for the people had finished summing up, the counsel for the defendant, address, ing the court, said: “ If your honor please, the counsel, in his address to the jury, made use of these words: ‘The little mound under the snow alone knows, and the defendant will not speak.' I ask that those words,—that the court ask the jury to eliminate from their minds those words, or else that they be made a part of the record.” The people’s counsel thereupon said, “ I am perfectly willing that they should be stricken out,” and the trial judge then remarked, “ If you are willing, they may be stricken out.” Uothing further was said upon the subject until the court, in its charge to the jury, made use of the following language: “ The fact that the defendant, several years ago, shot another woman, and was convicted of the crime of assult in the first degree, and served a term in state’s prison therefor, has been introduced as one factor in evidence of his insanity. The defendant has not given evidence on this trial himself. Therefore the evi

In the Ruloff Case, supra, this court, said: “Neither the prosecuting officer nor the judge has the right to allude to the fact that a person has not availed himself of this statute; and it would be the duty of the court promptly to interrupt a prosecuting counsel who should so far forget himself and the duties of his office, as to-attempt to make use of the fact in any way to the prejudice of a person on trial. An allusion by the judge to the fact, unexplained, cannot but be prejudicial to a person on trial, and a provision intended for his benefit will prove a trap and a snare.” It was held in that case that the allusion by the trial judge to the fact that the accused was not sworn was sufficiently explained in a subsequent part of the charge. In People v. Rose, 52 Hun, 32 , 39; 4 N. Y. Supp. 790 , the trial court, upon the request of the defendant’s counsel, struck out certain remarks of the district attorney, including this question asked by him in his address to the-jury on a criminal trial, viz.: “Why has not the defendant been sworn?” The court, however, although duly requested, did not tell the jury that they could draw no inference against the prisoner

The statement made by the counsel for the prosecution in his-address to the jury tended to call their attention in a pointed and suggestive manner to the fact that the defendant had not been sworn. It violated the spirit of the statute, passed for the protection of the accused, by seeking to draw an inference of guilt from his omission to testify. It was the duty of the court to comply with the request made, and instruct the jury “to eliminate from their minds ” the objectionable words. It did not do so, but struck out the words in such a way as to convey the impression that it was not done as a matter of justice to the defendant; but because the prosecuting counsel consented. The form of the court’s order was contingent, and implied that, unless the prosecution had consented, the direction to strike out would not have been made. The jury were not instructed to disregard the words, or told 'that the omission of the defendant to be sworn could not be used against

O’BRIEN, HAIGHT, and MARTIN, JJ., concur with GRAY, J., for affirmance. BARTLETT, J., concurs with VANN, J., for reversal.

Judgment affirmed.

Verdict will be set aside, where the sheriff permits the jurors to separate. State v. Foster, 14 So. 180 ; 45 La. Am. 1176.

Court may permit jurors to attend their respective places of business during a criminal trial. Baker v. State (Wis.), 59 N. W. 570 .

Where the nature of the offense charged was likely to create prejudice against the defendant in the community from which the jury were drawn, it is an abuse of discretion, after their empaneling and the commencement of the trial, to discharge the jury for sixty-three days, on motion of the state, because one of its witnesses was unable to attend. People v. Dinsmore (Cal.), 36 P. 661 .

Where the jury, during the trial, slept, six in each, in two adjoining, but not communicating, rooms, and the officers in charge in an adjoining room which communicated with one of the jury rooms, whose doors were locked by the officers, such separation did not, in the absence of any tampering or interference with the jury, vitiate the verdict. Commonwealth v. Manfredi, 29 A. 404 ; 162 Pa. St. 144 ; 34 W. N. C. 437 .

Slight separation and passing near other persons by the jury in leaving and returning to the court house, do not constitute ground for reversal, where they were kept practically together and the officers did not speak to them nor suffer them to be spoken to, as to any matter relating to the trial. State v. Belknap (W. Va.), 19 S. E. 507 .

Permitting one of the jurors to become separated a short distance from the other jurors, is not reversible error, where he was in sight of the officer, and no one had an opportunity to converse with him. Holly v. Commonwealth (Ky.), 36 S. W. 532 .

Misconduct of a juror, when passing a store with other jurors during a trial, in leaving them, going into the store alone, calling for a paper and pen and writing a note, if not explained, is ground for anew trial. Cartwright v. State (Miss.), 14 So. 526 .

Permission, by the bailiff in charge of the jury, to separate during a recess of the court, in violation of section 1842, R. S. 1881, is not ground for reversing a conviction. Masterton v. State (Ind. Sup.), 43 N. E. 138 .

Permission to two jurors, by the bailiff, during a recess of the court, to visit the water closet, is not a separation of the jury within the meaning of section 1842, R. S. 1881, where the bailiff accompanies them to the door of the room adjacent to the closet. Masterton v. State (Ind. Sup.), 43 N. E. 138 .

It is not ground for a new trial that a juror, in the middle of the night, when no outsiders were around, left the room where the other jurors were sleeping, and went to the water closet, the deputy sheriff going into the hall with him, and seeing that no one was in the hall or closet and the juror making affidavit that he neither saw nor spoke to any one while absent. State v. Harrison (W. Va.), 15 S. E. 982 ; 36 W. Va. 729 .

Under section 1311, Wash. Code Proc., allowing a jury to separate, though only for a few minutes, and mix with the crowd in the court room, where the testimony is such as to produce disgust and indignation against the defendant, is reversible error, though the prisoner and his counsel, who were both present,

Fact that a sick juror had been separated from his fellow jurors during a recess of the court, will not, where he has not been tampered with, sustain a motion to discharge the jury. Stout v. State, 25 A. 299 ; 76 Md. 317 .

Under section 198, Hill’s Code (Or.), it is discretionary with the court to keep the jury together, or permit them to separate, before the submission of the cause to them. State v. Shaffer (Or.), 32 P. 545 .

State may show that the jury, if separated before the case has been finally submitted to them, were not subjected to improper influences during such separation. State v. Howland (Mo. Sup.), 24 S. W. 1016 .

But a separation after they have retired for deliberation, without leave of the court, requires the granting of a new trial. Section 4269, R. S. 1889 ; State v. Howland (Mo. Sup.), 24 S. W. 1016 .

With the consent of both parties, the jury, in a criminal case may, at anytime before they finally retire in charge of the sheriff to consider their verdict, be permitted to separate. State v. Frier, 24 S. W. 220 ; 118 Mo. 648 .

Separation of the jury, after retiring to eonsider their verdict, is, if no injury results, no cause for a new trial, in a trial for a misdemeanor. State v. Dugan (Kan.), 34 P. 409 ; 52 Kan. 23 .

Separation of jury for necessary purposes only, furnishes no gropnd for granting a new trial, when defendant is not prejudiced thereby. Roper v. Territory (N. M.), 33 P. 1014 .

Under section 4442, Iowa Code, the fact that the jury were not kept together after the cause had been submitted for deliberation, is not ground for a new trial, if defendant is not injured thereby. State v. Wright (Iowa), 68 N. W. 564 .

Permitting a juror, after final submission of a murder case, to separate from the otheis and go, under the charge of an officer1 to his place of business, in ■order to close the house, and also to his club, is ground for reversal of a conviction. French v. Commonwealth (Ky.), 37 S. W 269 .

Under section 1909, Mo. R. S. 1879, separation, during a trial for murder in the first degree, before the retirement of the jury, will not, where the State shows affirmatively that the jurors were not subject to improper influences, ■constitute a ground for a new trial. State v. Avery (Mo. Sup.), 21 S. W. 193 .

Fact that, on a murder trial, a juror, with the consent of the court and defendant’s counsel went home for an hour, accompanied by, and remaining in sight of, a deputy marshal, and subject to no improper influence during his .absence, constitutes no ground for a new trial. State v. Sanson (Mo. Sup.), 22 S. W. 617 .

Allowing a jury, in a trial for a felony, not capital, to separate during the adjournments of the court, before the case is submitted to them is not error, even though the defendant, without giving any reason therefor, requests the court to have the jury kept together. Sutton v. People (Ill. Sup.), 34 N. E. 420 .

Under section 4434, Iowa Code, it is error to permit a jury,"before the final .submission of the cause to. them, to separate against the objection of defendant. State v. Garrity (Iowa), 64 N. W. 92 .

Separation of the jury, had on the motion and with the consent of the defendant, is no cause for the granting of a motion to discharge him. People v. Hawley (Cal.), 34 P. 404 .

Burden is upon' defendant, in trial of felonies other than capital cases, to show that he was injured by the separation of the jury before verdict. Tervin v. State (Fla.), 20 So. 551 .

Separation of several jurors from their fellows during the progress of a murder trial, so as to be out of sight of the officer who had them in charge, contrary to the order of the court, is not sufficient ground for a new trial, when it does not appear that anything was said to either of them concerning the case, or that they were guilty of any misconduet, or did any act inconsistent with their duties as jurors during separation. People v. Bemmerly (Cal.), 33 P. 263 .

Fact that a juror, while deliberating on the verdict, left the custody of the officer, went upstairs to a friend’s room, took a drink of whiskey, and stated,, on being asked, that the jury had not agreed on a verdict, is not, in the absence of proof of prejudice, sufficient cause for reversing a conviction of assault, with intent to murder. Stewart v. State (Tex. App.), 19 S. W. 908 .

Under art. 687, Tex. Code Crim. Proc., separation of a juror from his-fellows without consent, by going to a fire 200 yards distant, to look after the safety of his horse, where he was absent about an hour and mingled with people on the street, is a sufficient ground for reversing a conviction, notwithstanding affidavits by all the jurors that their verdict was not affected by the separation. Robinson v. State (Tex. App.), 17 S. W. 1082 .

The fact that the jury in a criminal case were given a recess and separated for five minutes after the case was submitted to them, and before they retired to the jury-room, and that one of the jurors, on account of lameness, was left in the jury room with the door locked wnile the others, under the charge of the bailiff, were at their meals, is no ground for a reversal, where it appears-they talked with no one, and heard no remarks concerning the case. Territory v. King, 50 N. W. 623 ; 6 Dak. 131 .

Fact that one of the jurors, in disobedience of a previous order of the court, left the jury box and joined in pursuit of the defendant, who had escaped from the court room during the trial, is not such misconduct as to require a new trial, when he, on returning, stated, in response to questions by the court, that be had not conversed with any one as to the guilt or innocence of the defendant. Dobson v. State (Ark.), 17 S. W. 3 .

Sections 1910, 1966, R. S. Mo. 1879, do not apply to separations of the jury during the progress of the trial and before their retirement. State v. Orrick (Mo. Sup.), 17 S. W. 176 ; 106 Mo. 111 .

But, under section 1909, R. S. Mo. 1879, separation of the jury during the trial in a felony case, though before they have retired to consider their verdict, will be grpund for a new trial, unless it affirmatively appears that the jurors were not thereby subjected to improper influences. State v. Orrick (Mo. Sup.) 17 S. W. 176 ; 106 Mo. 111 .

An assignment of error, in that the jury, were allowed to separate after being-impaneled and sworn in a criminal case, is not ground for reversal, where it is-not alleged that they were not admonished by the court, under Grim. Code Neb. section 484, providing that, if the jury are permitted to separate during-the trial, they shall be admonished by the court as to their duties until the cause is finally submitted to them. Langford v. State (Neb.), 49 N. W. 766 ;. 32 Neb. 782 .

The fact that some of the jurors, during their deliberations upon their verdict, are taken by the bailiff, under the orders of the court, from the jury-room to-the water closet and returned, if nothing of a prejudicial character occurs during such separation, is no ground for setting aside the verdict and granting a. new trial. State v. Flack (Kan.), 29 P. 571 ; 48 Kan. 146 .

Where, under sections 4442, 4458, 4460, 4402, 4470, Iowa Code, the jury-agreed, in a prosecution for keeping a liquor nuisance, upon a verdict of guilty, sealed and delivered the same to the officer and tiren separated, each going his way, a judgment on such verdict will be set aside, though the jury, two hours after such separation, reconvened and delivered the same verdict in open court. State v. Fertig (Iowa), 50 N. W. 545 .

Fact that the offense charged was a misdemeanor, is immaterial. State v. Fertig (Iowa), 50 N. W. 545 .

The denial of a motion for a new trial, made upon the ground that there had. been an illegal separation of the jury, is in the discretion of the court, where-the proofs raise a question of doubt. People v. Buchanan, 145 N. Y. 1 ; 64 S. R. 427 ; 9 N. Y. Cr. 428.

NOTE ON “COMMENT ON OMISSION OF DEFENDANT TO TESTIFY IN HIS OWN BEHALF.”

It is improper for the counsel for the prosecution to make any reference to-the failure of the accused to take the stand. Wilson v. United States, 13 Sup. Ct. 765 ; 149 U. S. 60 .

Comment by prosecuting attorney in argument on the failure of a defendant to testify upon anv particular point, is improper. People v. Sanders (Cal.), 46 P. 153 ; State v. Fairlamb (Mo. Sup.), 25 S. W. 895 .

No allusion can be made as to the failure of defendant to go on the witness-stand on a former trial. Richardson v. State (Tex. Ct. App.), 27 S. W. 139 .

So, no illusion to the fact that he has not testified at the pending trial, can. be made. Brazell v. State (Tex. Ct. App.), 26 S. W. 723 .

But a remark, made before defendant had refused or failed to testify, is not a violation of the statute. Diebel v. State (Tex. Ct. App.), 24 S. W. 26 .

Comment by prosecuting attorney, in making his argument to the jury, on defendant’s failure to testify, is reversible error. Hunt v. State, 12 S. W. 727 ; 28 Tex. App. 149 ; Johnson v. State (Tex. Ct. App.), 20 S. W. 980 ; 31 Tex. Cr. R. 464 .

Section 333, Ky. Crim. Code, which provides that a defendant’s failure to testify shall not be commented on, or be allowed to create a presumption against him, does not prevent the prosecution from asking him on the trial, why he did not testify on the examining trial. Taylor v. Commonwealth (Ky), 34 S. W. 227 .

Subsequent charge to disregard comment of the prosecuting attorney upon defendant’s failure to testify does not cure a violation of the statute forbidding comment. Commonwealth v. Holtham (Quart. Sess.), 1 Lack. Leg. N. 370.

In Alabama, it was held that a bastardy proceedings, though penal in character, is not a criminal prosecution, within the meaning of section 4473, Code, which forbids counsel from commenting upon defendant’s failure to testify in his own behalf. Miller v. State (Ala.), 20 So. 392 .

It was held erroneous for the prosecuting attorney to state, in a reply to a remark of defendant’s counsel as to producing witnesses, “You know the laws of this state permitted the defendant to remain silent, and 'it would be improper and cowardly for me to comment upon it, and it is not my intention xo evade the spirit or letter of the law.” State v. Holmes (Minn.), 68 N. W. 11 .

Under section 1741, Miss. Code, comment by counsel upon defendant’s failure to testify is ground for reversal, though the court rebuked him and directed the jury to disregard the fact alluded to, and counsel asked that Ms remarks be considered as withdrawn. Sanders v. State (Miss.), 18 So. 641 .

Statement by prosecuting attorney, in his closing argument, that “nota particle of evidence has come to you from defendant, from his side of the case,” was held not a comment on defendant’s failure to testify, within the prohibition of cl. 4, § 1798, Ind. B. S. 1881. Frazer v. State (Ind. Sup.), 34 N. E. 817 .

Comment by attorney general to the jury, on trial of an indictment charging defendant with keeping a house of ill-fame, that it was improper for him to remark upon the failure of defendant to testify, but it was her duty to meet those charges, etc., though disapproved, was held insufficient ground for a new trial, where no objection was made at the time, and no request was made to charge the jury not to consider it. State v. Hill (R. I.), 26 A. 191 .

Conviction should be set aside, when attorney for the prosecution, though interrupted by the court in saying, in his argument to the jury, “ Defendant has not taken the stand, which is his privilege under the law, and no inference can be drawn from the fact,” continues such comment by saying that “defendant has immolated himself on an altar of his own erection.” Yarbrough v. State (Miss.), 12 So. 551 .

Statement by state’s attorney, made in argument in presence of the jury, that “they have the same right to put the defendant upon the stand, and let Mm tell his story, the same as we have,” is in violation of section 3636, Iowa Code. State v. Baldoser (Iowa), 55 N. W. 97 .

Under section 13, article 1, Constitution, and section 2643, General Statutes, unfavorable comment by the prosecuting attorney in his argument upon the fact that defendant had not gone upon the stand, will not, though improper, cause a reversal, when the court, by charging that no inference can be drawn therefrom, checks any evil consequences. State v. Howard (S. C.), 14 S. E. 481 .

Statement by attorney for commonwealth that, though he had no right to swear, he had the right to prove the statements of the accused, does not violate section3897 Virginia Code. Sawyers v. Commonwealth (Va.), 13 S. E. 708 .

Allusions of prosecuting attorney, in his argument to the jury, to defendant’s failure to testify in his own behalf, if withdrawn on exception, furnish no ground for a new trial, where the court declares them improper and directs the jury to disregard them. State v. Chisnell (W. Va.), 15 S.