
    (First Circuit — Hamilton Co., O., Circuit Court —
    Jan. Term, 1893.)
    Before Swing, Cox and Smith, JJ.
    HENRY SULLIVAN v. THE STATE OF OHIO.
    
      It is not error where the defendant in a criminal case fails to take the stand and testify, to charge the jury that such failure raises no presumption of guilt against him.
    
   Smith, J.

We are of the opinion that there was no error prejudicial to the defendant below, in the action of the court in saying to the jury that “the law prohibits the jury from inferring any guilt from or making any use against the prisoner, of his omission to testify in his own behalf. No inference can be made by you, that his silence is, in any degree, an admission of the truth of any testimony which may have been given against him.” Though such charge had not been asked for by the defendant, nor had any other reference been made by any one at the trial to the failure of the defendant to testify.

It is true that section 7286, Rev. Stat., which makes a defendant competent to testify, if he wishes to do so, and which provides that his neglect or refusal “to testify, shall not create any presumption against him, ” also says, “nor shall any reference be made to, nor any comment be made upon such neglect or refusal.” But the manifest purpose of this provision was to protect the interest of the defendant,and to prevent him from being prejudiced by the presumption which would naturally arise against him if he declined to testify, and to prevent the counsel for the state from urging this as an argument against him, or the court from calling the attention of the jury to the inference or presumption which ordinarily would arise in such a case.

But even if counsel should refer to the failure of the defendant to testify, and the court should promptly interfere and clearly make known to the jury what the law requires, and that no such presumption must be permitted to influence them, in such case, though the letter of the statute has been violated, it has been held that it would not necessarily be prejudicial to the defendant, or be sufficient'cause for the granting of a new trial. 18 Ohio St. 366.

So, if the defendant should ask the court to say to the jury that his failure to testify should raise no presumption against him, while it would appear to be against the letter of 'the law that this be done, it certainly could not be against its spirit. And, if the court, sioa sponte, were to charge the jury to do that which the law requires them to do, it could hardly be deemed prejudicial to the defendant. It is known to every one, that when a person is charged by the testimony of others with doing or saying something which by his own testimony he could successfully contradict or explain, and without apparent reason therefor remains silent, the inference is very strong that he can not honestly contradict or explain the evidence against him. Ye.t in such a case the law makes it the duty of the jurors to disregard the presumption which thus arises. And it would seem not to be in contravention of the spirit of the statute if the judge, who may have seen the effect produced upon the jury by the failure of the defendant to testify in a particular case, should instruct them as to what the law requires of them in such case. Under the statute of New York, which is substantially similar to our own, it was held in 45 N. Y. 228 that a charge on this point in conformity with its terms, was not error for which the judgment should be reversed.

Charles W. Baker, for plaintiff in error.

Schwartz, Rulison & Darby, contra.

This being the only objections to the rulings of the trial judge presented to us, the judgment will be affirmed.  