Upon the trial of this action evidence was given tending to show that on the tenth 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 *Page 308 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, addressing 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." Nothing 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 assault 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 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. It cannot be inferred that he is guilty of this crime from the fact that he was adjudged guilty of that crime. As I said, the defendant did not testify in his own defense. Why did henot? That is of no legal consequence. In our country, the defendant is not compellable to testify against himself on a criminal charge. That is one of the guarantees of our Constitution respecting the liberty of the citizen, 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."
Nothing appears to have been said or done by court or counsel at any time in relation to the failure of the defendant to be sworn except as thus stated. *Page 309
Both the State and National Constitutions provide that "no person shall be compelled, in any criminal case, to be a witness against himself." (U.S. Const. fifth amendment; Const. of N Y art. 1, § 6.) It is a part of the Bill of Rights and is repeated in section ten of the Code of Criminal Procedure, although by a subsequent section it is provided that "the defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him." (Code Cr. Pro. § 393.) Prior to 1869 a defendant could not be sworn, even in his own behalf, upon the trial of an indictment against him, but in that year an act was passed making him a competent witness, "at his own request," but with the same provision in relation to the effect of his neglect or refusal to be sworn as is quoted above from the Criminal Code. (L. 1869, ch. 678.) The object of this statute was to benefit the accused by repealing the rule of the common law, which kept him from the witness stand. It was not designed to add to his burden or embarrassment, but its sole purpose was to enable him to make a better defense by taking the stand as a witness, provided he chose to do so. It sought to protect him from all harm if he was not sworn by declaring that no presumption should arise against him from that fact. As was said by this court in People v.Tice (131 N.Y. 651, 656): "The law, so far as it can, protects a defendant who omits to be sworn from having that fact weigh against him." It was at one time contended that the supposed moral coercion, exerted upon a person accused of crime, to compel him to offer himself as a witness by reason of the adverse inference which might be drawn from his omission to testify, when presumably all the facts were known to him, rendered the act unconstitutional, but this court held otherwise, partly for the reason that the statute expressly forbade any adverse presumption from the silence of the defendant. (People v. Courtney,94 N.Y. 490; Ruloff v. People, 45 N.Y. 213, 222.) It is idle for the statute to forbid unless practical effect is given to the prohibition by the courts. What is the command of the statute worth if the presumption that it *Page 310 forbids is suggested to the jury by the court, and they are not expressly told to ignore it? If the presumption springs up in their minds and is allowed to remain there, the statute is violated, and the defendant is deprived of a substantial right. As they were not told to disregard the question asked by the court, what assurance is there that they did not answer it to the prejudice of the defendant? Is it not reasonable to suppose that they tried to find an answer to such a question, coming from such a source?
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, 33, 39) 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 because he had not been sworn. There was no express refusal, but the judge remarked, "I do not think the district attorney will go on any further." The General Term in reversing the judgment of conviction said: "It was the duty of the court, by proper instruction to the jury, to protect the defendant against the prejudice or inference which the district attorney's remarks suggested — certainly upon proper request. The matter was of the utmost importance to the defendant and the request of his counsel should have been *Page 311 explicitly granted. As it was, the comments of the district attorney and the request of his counsel were disposed of in a manner well calculated to impress the jury with the idea that the district attorney was only technically wrong but substantially right, and that the request of defendant's counsel was of small moment." It is obvious that an inadvertent allusion, if explained with sufficient care and clearness so that it is plain to be seen that no harm could have been done, should not be permitted to disturb a judgment, but if, on the other hand, the statute has, either directly or indirectly, intentionally or otherwise, been, in effect, used against the defendant, the judgment should not be allowed to stand. The question in all such cases, as it seems to me, is whether the statement, as made, when considered in connection with the explanation, if any, can fairly be presumed to have been without harm to the defendant.
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 him in any way. They may well have thought that the words were stricken out through the generosity of the district attorney, and not because the law required it. To merely strike from the record, under such circumstances, might leave the jury ignorant *Page 312 of their duty in reference to the subject, especially since the request for instructions to eliminate the words from their minds was disregarded. There should have been an explicit and emphatic direction given to the jury that it was their duty to pay no attention to the improper suggestion of counsel, and that the failure of the defendant to be sworn was not a subject for their consideration. When the statement made by counsel was followed by the question, put to the jury by the court in its charge, why the accused did not testify in his own defense, the impression naturally made upon their minds would not ordinarily be removed by merely perfunctory remarks, even if they were a correct exposition of the law. The power and influence of the Supreme Court went with that question. It was in the nature of an argument against the defendant from that high source. It called for an explanation that could not then be given, and which by the law's command can never be required. If it had been asked by counsel, it would have been the duty of the court to promptly rebuke him, and to tell the jury that it was an improper question for counsel to ask or for them to answer. That the question was inadvertently put by the learned judge is obvious from the prompt explanation that followed, yet in explaining the court said that the omission of the defendant to be sworn was of no legal consequence, and that he could not be compelled to testify against himself. Was it of any moral consequence? If he had testified, would his evidence have told against himself? Was that the reason why he did not take the stand? Conscious of guilt, did he dare to be sworn? It seems to me that these questions would naturally be suggested to the minds of the jury by the very explanation of the court itself. It is true that there immediately followed an allusion to the safeguard of the statute, but the poison was already in the minds of the jury, and something more was required, under the peculiar circumstances, than a partial repetition of the language of the statute. The court should have told them, in substance, that, unless they wholly cast from their minds the question that he had hastily asked, they would *Page 313 violate the law and do an injustice to the defendant. In other words, the occasion required the clearest withdrawal of the words used, and an emphatic instruction to treat them as if they had never been uttered. This was not done, and although the humane judge who presided at the trial at once sought to correct his mistake, I think his effort was not sufficient to remove the erroneous impression that he had created in the minds of the jury and that it is our duty to correct the error, although no exception was taken by the defendant's counsel. (People v.Corey, 148 N.Y. 476, 493; People v. Driscoll, 107 N.Y. 414; Code Cr. Pro. § 528.)
The object of the statute was to protect persons accused of crime. It is difficult even when every precaution is taken, to make it the means of safety instead of danger. Jurors will ask themselves questions that neither court nor counsel can ask with propriety. Every lawyer of experience in criminal trials knows that an innocent man, who has a bad reputation, or who has been at some time convicted of another offense, can neither take the stand nor keep away from it without serious peril. If even silence is dangerous, what is to be said when counsel and the learned court, itself, make pointed allusions, or ask suggestive questions? I think it is the duty of the courts to see that the humane object of the statute is not defeated, and to prevent it from becoming a pitfall instead of a protection, by requiring those who administer the law to abstain from allusions, comments or questions in the presence of the jury that may tend to prejudice the defendant, because he was not sworn; and, if a mistake is committed in the hurry of extemporaneous remarks, unless it is carefully and thoroughly corrected by the trial court, that it should be corrected by the appellate courts through a reversal of the judgment of conviction.
Without considering any other question, I vote for reversal and a new trial.
O'BRIEN, HAIGHT and MARTIN, JJ., concur with GRAY, J., for affirmance; BARTLETT, J., concurs with VANN, J., for reversal; ANDREWS, Ch. J., absent.
Judgment affirmed. *Page 314