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motion of the State's attorney the court entered a nolle prosequi as to the seventh, eighth and thirtieth counts.
Plaintiff in error made a motion to quash the indictment, which was overruled as to all except the twenty-fifth count. He then entered a motion, supported by affidavit, praying for a bill of particulars. This motion was allowed in part and overruled in part, and a bill of particulars in accordance with the order of the court was furnished. Thereafter, on April 9, 1915, he entered a plea of not guilty and obtained a change of venue from Cook county, the cause being transferred to Grundy county for trial of the charge against him. A motion made by plaintiff in error in the circuit court of Grundy county for a more specific bill of particulars was denied and the cause was set for trial. On September 27, 1915, the cause was called for trial and plaintiff in error interposed a challenge to the array, which was overruled. The jury empaneled to try the cause found Munday guilty and fixed his punishment at five years' confinement in the penitentiary. Munday sued out a writ of error from the Appellate Court for the Second District, where the record of the circuit court was reviewed and the judgment was affirmed. This writ of error has been sued out by plaintiff in error to obtain a reversal of the judgments of the circuit and Appellate Courts.
The taking of evidence in this case extended over a period of several weeks. A multitude of transactions in which plaintiff in error and his co-defendants had participated and which resulted in financial loss to stockholders and depositors of various banks were investigated, and this evidence tended strongly to show that plaintiff in error was guilty of the crime as charged in various counts of the indictment. On the other hand, plaintiff in error testified in his own behalf and offered other evidence from which the jury could have found that plaintiff in error was not guilty of the crime of conspiracy as charged in the indictment. As the judgment must be reversed for errors hereinafter
noted and the cause remanded to the circuit court for a new trial, we refrain from commenting upon any of the evidence offered by the People or by plaintiff in error upon the trial of the cause.
Numerous grounds are relied upon for reversal. The record is very voluminous and the evidence covers a wide scope. It would be remarkable in a trial of this character and with a record of this size if the case should be entirely free from error. Many of the matters assigned for error are without force, but some of them are so serious as to work a reversal of the judgment. The most serious error was in permitting counsel for the State to indulge in improper argument to the jury. In his closing argument F. H. Hayes, the State's attorney for Grundy county, referred to the fact that plaintiff in error had not called his co-defendants as witnesses, as follows: "A peculiar thing right now about those transactions—about these defendants: If they were as fair and clean as counsel would have you believe, why isn't William Lorimer here? Why hasn't he been here to face you?" Whereupon the following occurred:
Mr. Hogan: “I object to the statement and except to it.
Mr. Hayes (continuing): “Why hasn't Mr. Huttig been here to face you?
Mr. Hogan: “I object to the statement, your honor, and ask for a ruling,
The court: "On what ground?
Thereupon a discussion occurred between the court and counsel for each side, in which the court stated that he was inclined to overrule the objection, but if counsel for plaintiff in error had any authority upon the subject he would like to see it. As the time for adjournment for the day had about arrived, the court requested the State's attorney
to defer argument along that line until the following morning. All this occurred in the presence of the jury. On the following morning, and before the jury was brought into court, counsel submitted their authorities to the court and he stated that he would overrule the objection. Thereafter H. N. Bell, one of the assistant State's attorneys for Cook county, made the following statement in his closing argument to the jury: "He says it is improper to refer to the fact that a defendant does not take the stand. He made that objection to the court and asked that the reference be stricken out, and he appealed from the court to jury, and read law books, and gave us a great, long discussion about it. I think he read the statute. Now, that is the statute. It is the statute that you have no right to refer to a defendant's failure to take the stand. The law gives that protection to a man. You cannot comment upon the failure of the defendant to take the stand. Now, what about that? Then why all this talk? The law is just equally as plain that when a defendant does take the stand he becomes the same as any other witness, subject to the same rules of cross-examination and comment. He cannot go on half way and stay off half way. If he goes on he must go on all the way, and when he takes the stand that is what he does, and he exposes himself to comment just the same as any other man. It cannot hurt him or prejudice him that William Lorimer and Huttig were commented on or were named in the indictment but not defendants in this trial. And I want to tell you he had the right, and under the law it was his duty, connected with these people as he is, under the law it was his duty to bring those people here, under the summons and power of the court if they wouldn't come, and put them on the stand, and if they wanted to they could refuse to testify upon the ground that it would incriminate themselves, and that is all there is to that.” To this statement counsel for plaintiff in error objected and the objection was overruled.
It is first contended on the part of defendant in error that these statements of counsel in argument were legitimate replies to statements made by counsel for plaintiff in error in their arguments to the jury. This contention can not be sustained. The only reference made by counsel for plaintiff in error in their arguments to Lorimer and Huttig was based on proof that was in the record as to the various transactions participated in by them and as to the various enterprises in which they were interested. This argument was legitimate and afforded no basis whatever for the reference made by counsel for the State to the fact that plaintiff in error had failed to call these defendants to testify. It is evident that counsel were endeavoring to · have the jury draw the inference that the testimony of the co-defendants would have been adverse to plaintiff in error and for that reason he had not called them as witnesses, and therefore the jury were warranted in presuming the plaintiff in error to be guilty of the offense charged.
Defendant in error contends that it is proper for the State to comment on the failure of a defendant to produce a witness when such witness, by reason of friendship, association or interest, is more available to the defense than to the State. While there is some apparent conflict in the authorities, the general rule is that the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution. (12 Cyc. 385; Commonwealth v. Webster, 5 Cush. 295; State v. Cousins, 58 Iowa, 250; State v. Fitzgerald, 68 Vt. 125; Brown v. State, 98 Miss. 786; Brock v. State, 123 Ala. 24.) It
does not appear that plaintiff in error attempted to suppress any evidence or to prevent the State from having access to any witness who could testify to any material facts. Lorimer and Huttig were jointly indicted with plaintiff in error and they had not yet been tried. It follows that they were either in custody or at liberty on bail. It does not appear that they were any less accessible to the State than they were to plaintiff in error. Whether called by plaintiff in error or by the State their testimony could not have been secured without their consent, as they had the constitutional right to decline to testify if matters concerning which they were interrogated would tend to incriminate them. In Johnson v. State, 94 Miss. 91, the district attorney called the attention of the jury to the fact that the clefendant did not produce his wife as a witness. In that State the statute permits a wife to testify on behalf of her husband with the consent of the wife. For these remarks the judgment of conviction was reversed. In Brown v. State, supra, the prosecutor in his argument called the attention of the jury to the fact that the defendant had failed to produce his father and brother as witnesses, both of whom, it appeared, were in possession of material facts and both of whom were in the court room during the progress of the trial. The judgment was reversed upon the ground that these witnesses were equally accessible to the State and the defendant, and the failure of the defendant to call them afforded no foundation for drawing the inference that their testimony would have been prejudicial. In Brock v. State, supra, counsel for the State commented upon the fact that a co-defendant not on trial had failed to take the stand. l'pon objection the trial court held that the argument was legitimate. In reversing the case the Alabama Supreme Court stated: “In the present case Coppin could not have been compelled to testify to any fact tending to criminate himself. The offense being one of which he and the defendant must both have been either guilty or innocent, his