The plaintiff in error upon his trial in the court below for burglary did not testify as a witness. A State witness had identified him when brought before her as the man whom she found in her room at night, and testified to the fact upon the witness stand. Commenting upon 'this testimony the attorney assisting the State in the prosecution in his argument to the jury said: “There was no denial of that accusation then, and there is none now.” This ivas objected to by the defendant’s counsel as in violation of the provision in Chapter 4400, acts of *391895, that no prosecuting attorney shall be “permitted before the court or jury to comment on the failure of the accused to testify in his own behalf.” This objection was sustained as to the words “and there is none now,” whereupon the attorney for the State disclaimed any intention of referring to the failure of the defendant to-testify, and against the objection of the defendant’s counsel was permitted at some length to make an explanation-of his position to the jury in which, among other things, he said: “I do not mean for one moment to contend before you that 1 have the right to argue to you that you should convict this defendant because he has not seen fit to become a witness in his own behalf, * * * how in the next breath could T have meant to convey to your minds that you were to he prejudiced" against tins defendant, or that you were to find him guilty or even to consider it as an element of guilt that he did not go upon the witness stand.”
The effect of this was to call to Hie attention of the-jury the fact that the failure of the defendant to testify might he used as an argument along the various lines-suggested, and while the reference thereto was made in good faith in negativing such a purpose rather than in pursuing it, it was none the less violative of the statute above mentioned. The prohibition of the statute is not limited to philippics against the prisoner based upon his failure to testify, hut extends to any comment upon such failure. There, may he some circumstances where reference to the faci may be made in such form as not to constitute reversible error, as in the case of State v. Mosley, 31 Kan. 355, 21 pac. Rep. 782, but the remarks made in this case are not of that character. Wilson v. United States, 149 U. S. 60, 13 Sup. Ct. Rep. 765; State v. Holmes, 65 Minn. 230, 68 N. W. Rep. 11; State v. Moxley, *40102 Mo. 374, 14 S. W. Rep. 969; 15 S. W. Rep. 556; Yarbrough v. State, 70 Miss. 593, 12 South. Rep. 551; Reddick v. State, 72 Miss. 1008, 16 South. Rep. 490; Watt v. People, 126 Ill. 9, 18 N. E. Rep. 340; State v. Graham, 62 Iowa, 108, 17 N. W. Rep. 192; Ruloff v. People, 45 N. Y. 213; State v. Balch, 31 Kan. 465, 2 Pac. Rep. 609; Hunt v. State, 28 Tex. App. 149, 12 S. W. Rep. 737, criticised in Parker v. State, 39 Tex. Crim. App. 262, 45 S. W. Rep. 812.
The error was not cured by instructions to the jury, as may he done, according to some authorities, but defendant’s objection was overruled and the remarks held to he proper.
For this the judgment must he reversed and the cause remanded for a new trial.