
    Easterling v. State.
    (In Banc.
    Feb. 12, 1945.)
    [20 So. (2d) 840.
    No. 35740.]
    
      A. S. Scott, of Laurel, for appellant.
    
      Greek L. Rice, Attorney General, by R. O. Arrington, Assistant Attorney General, for appellee.
   Griffith, J.,

delivered tbe opinion of tbe court.

Tbe only assignment requiring discussion is tbe complaint that in bis argument to tbe jury tbe district attorney, in violation of Sec. 1691, Code 1942, commented on tbe failure of appellant to testify. Tbe basis for tbis complaint is embodied in a special bill of exceptions wbicb, omitting tbe formal parts, is as follows:

“Tbe district attorney in arguing tbe case said: £Tbe defendant bas not furnished you a single witness wbo said that the defendant did not do it.’ ”

Tbis is all that is shown by tbe bill of exceptions. Tbe charge was grand larceny and tbe defense was an alibi. Appellant introduced six witnesses wbo testified that at tbe time laid by tbe two state’s witnesses, appellant was at the borne of a neighbor two or three blocks away from tbe scene. In bis cross-examination of four of these witnesses, tbe district attorney pressed upon them the question — or questions to that effect — whether they could swear that appellant did not commit tbe offense, to which they responded that they could not say. Of two of tbe witnesses, tbe district attorney did not make tbis inquiry, but we may assume that since be considered it of significance that tbe four wbo were specifically questioned did not say that appellant did not commit the offense, it was of equal significance that tbe other witnesses introduced did not so say, and in tbis we are referring to tbe probable course of the argument and to what it may be that the attention of the jury was being directed, and not to the cogency, if any, of the argument.

In its ordinary signification the word “furnish” is'not synonymous with ‘ ‘ perform, ’ so that it has been held that an agreement by a party to furnish services is not an agreement that he himself shall do the work or any part of it. See for instance Adams v. Feiges, 206 Wis. 183, 239 N. W. 446, 448. Upon similar principle, an assertion that a defendant has not furnished witnesses does include a comment that he has not furnished himself as a witness, unless the entire text in connection with which the assertion is made is sufficient to disclose that the meaning conveyed was one inclusive of the defendant himself. We have nothing before us of the associated assertions— nothing except what has above been quoted- — and of course we cannot assume that they were such as to supply a meaning other than that literally embraced in the quoted excerpt. It may be conjectured that the jurv understood the reference as . one including the defendant himself, but if we are to resort to conjecture as to what a jury understood, we would place prosecuting attorneys in such a strait-jacket as to unduly hamper them in the legitimate scope of their work.

Inasmuch, however, as an expression such as used in this case introduces the possibility that the jury may have thought of it as a reminder that the defendant had not testified, such an expression should not be used‘by a prosecuting attorney, and if used and its contextual connection when placed before us discloses a likelihood that the jury understood it as a comment on the failure to testify, we will of course apply the corrective by a reversal. But as already indicated, we cannot substitute conjecture for likelihood and must assume, if reasonably permissible, that the connection in which the argument was used rendered it legitimate, that is to say, that it did not violate the cited statute.

Affirmed.  