* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 836, n. 34; p. 917, n. 67; p. 919, n. 78; 17CJ, p. 72, n. 58. Thomas Allen appeals from conviction on a charge of murder and sentence to the penitentiary for life. The testimony in the case fully warranted the jury in finding the defendant guilty as charged.
Appellant assigns one error for reversal, and that is that the judgment should be reversed, because the prosecuting attorney, in his closing argument to the jury, *Page 232 commented upon the failure of defendant to call his wife as a witness in his behalf. That part of the special bill of exceptions setting up this ground for reversal is as follows:
"First, after all testimony was introduced and all argument had closed, except the rejoinder by the district attorney, he (the said district attorney), in his rejoinder, called attention of the jury to the defendant's failure to call his wife as a witness, to which the defendant then and there excepted. Judge HALL sustained the exceptions, and instructed the jury to disregard such remarks."
We recognize the rule in this state that it is error for the prosecuting attorney to comment to the jury on the failure of the defendant's wife to testify in his behalf; but we do not think it was reversible error in the case at bar, because, when the objection was made, the trial judge sustained it, and instructed the jury to disregard the remarks of the prosecuting attorney.
At this juncture of the trial it was the duty of counsel for appellant to move the court for a mistrial and a discharge of the jury, but, instead of counsel so doing, he proceeded with the case, and reaped the advantage of a possible acquittal; and, therefore, we do not think the point is maintainable as reversible error. The action of appellant in proceeding with the trial was the equivalent of a waiver of his right to a mistrial, after the court had sustained the motion.
In the case of Cotton v. State, 135 Miss. 792, on page 798, 100 So. 383, on page 384, this court had the following to say:
"We think that the court did all he was required to do under the circumstances, and when the court sustained the objection and instructed the jury to disregard it and reprimanded the district attorney for the use of such language, he did all the law required him to do in the premises. If, however, further action was necessary, it devolved upon the defendant to request a mistrial *Page 233 to be entered and a new jury impaneled, because he could not, after the court had so ruled, proceed with the trial and take the advantages of a possible acquittal, and on motion for a new trial, seek to set aside the trial when the verdict had gone against him. The judgment of the court will be affirmed."
We think the rule announced in the Cotton case, supra, is sound, and we see no good reason why it should not be followed in the case at bar.
The judgment of the lower court is affirmed.
Affirmed.