mere refusal upon the ground of self-incrimination might have been construed by the jury to the defendant's disadvantage. On the contrary, if he had not declined, the credibility of his testimony would have been open to assault upon the ground of interest. If, in view of the fact that the scope allowed to his examination would have depended largely upon Coppin's own volition, the testimony could be deemed accessible to the defendant, yet it does not appear to have been less accessible to the State. Under the circumstances no presumption could arise that the testimony was withheld from sinister motives, and the jury should have been left to try the issue upon the evidence introduced. The proneness of the jury to consider a defendant's failure to testify in his own behalf, and the prejudice to the defendant which would naturally result therefrom, induced the legislative prohibition against any adverse comment in argument upon such failure. The statute does not cover this precise case, but the argument was improper under the general rule before stated, and in determining its effect we are impressed with the consideration that the same results which the statute intended to forestall when the defendant is not examined may follow, as well, when the person not produced is one jointly implicated with the defendant. The argument objected to was therefore forcibly calculated to injure the defendant's case, and the error committed in its indulgence must work a reversal of the judgment." To the same effect is Hopkins v. State, 11 Okla. Crim. 385. In People v. Blumenberg, 271 Ill. 180, the State's attorney was permitted, over objection, to state that one of the defendants was absent, residing in Paris, and had not been in this country since the indictment was brought and for that reason was not on trial, and that if there was one man who could come there and assist the plaintiff in error in making his defense he had sought safety in France. It was held that this constituted prejudicial er

ror.

While the precise question raised here was not in

volved in that case it is somewhat analogous. It was not peculiarly within the power of plaintiff in error to produce Lorimer and Huttig as witnesses. They were as accessible to the State as to the defense, and it was error for the court to permit counsel for the State to refer to the fact that they had not been called as witnesses.

The language used by counsel for the State goes further than merely offending against the general rule. Bell stated that it was the duty of plaintiff in error, under the law, connected with Lorimer and Huttig as he was, to bring them there, under summons and power of the court if they would not come otherwise, and put them on the stand, and then called attention to the fact that if they saw fit to do so they could refuse to testify upon the ground that they would incriminate themselves. In State v. Cousins, supra, the trial court instructed the jury that the defendant had the right to call his co-defendant as a witness, and the fact that he had not done so when he could have been called and examined was a circumstance that might be taken against him and that the jury might give it such weight as they thought it was entitled to. The Supreme Court of Iowa in reversing the judgment of conviction for the giving of this instruction said: "The doctrine that the failure of the accused to introduce evidence explanatory of inculpatory circumstances may be regarded as a circumstance against him is to be cautiously applied, and only in cases where it is manifest that proofs are in the power of the accused not accessible to the prosecution. (Wills on Circumstantial Evidence, (5th Am. ed.) 1876; Commonwealth v. Webster, 5 Cush. 295; State v. Rosier, 55 Iowa, 517.) A defendant in a criminal case is by statute made a competent witness in his own behalf, but the fact that he does not become a witness is not to have any weight against him and must not be alluded to on the trial. (Miller's Code, 3636.) There is even greater reason why the failure to call as a witness an alleged accomplice should

A

not be regarded as a circumstance against the accused. degree of discredit is by the State cast upon the accomplice by accusing him of a crime, and the defendant might well conclude that his testimony would have but little weight. The accused may, in fact, be innocent and the alleged accomplice guilty. Under such circumstances the accused might be greatly prejudiced if he should call his codefendant, who might shield himself at the expense of the other party. Besides, one charged with a crime scarcely ever acts naturally, and the testimony of a really innocent party accused of a crime might be of such a character and presented in such a manner as to create a strong suspicion of guilt. In addition to all this, the alleged accomplice was as accessible to the State as to the defendant. Under the doctrine of State v. Rosier, 55 Iowa, 517, no presumption arises against the defendant on account of his failure to call Hilliard as a witness. We unite in the opinion that the court erred in giving this instruction."

Counsel for defendant in error admit that if an instruction such as that given in the Iowa case had been given in this case it would have been prejudicial error, but endeavor to point out a distinction between an instruction laying down a principle of law and a statement of fact made by counsel in argument. We are unable to perceive any distinction between the situation here presented and that in State v. Cousins, supra. Objection was made to the statement of Hayes in the presence of the jury, and an argument followed as to the right of the State's attorney, under the law, to make this argument. After the authorities requested by the court had been presented he overruled the objection, thus holding that the argument was proper. When objection was made to the argument of Bell the court overruled it, and the jury were thereby given to understand that he had correctly stated the law. The jury were thus told, as plainly as though they had been instructed in writing, that it was the duty of plaintiff in error, under the law, to

call his co-defendants as witnesses, and that they had a right to consider that as a circumstance against him and to give it such weight as they deemed it entitled to. No duty devolved upon plaintiff in error to call anyone as a witness. It was his privilege to produce witnesses and to make a defense or not, as he chose. The duty devolved upon the State to prove his guilt beyond all reasonable doubt before the jury were warranted in convicting him. The duty did devolve upon plaintiff in error not to put it without the power of the State to produce any material witness, and if he did so the State had the right to show that fact as a circumstance against him. No such situation is presented here. To say that it was the duty of plaintiff in error, under the law, to produce witnesses who were equally accessible to the State and who were supposed to be in possession of facts having a bearing upon the truth or falsity of the charge against him would be placing a burden upon him that the law does not require or tolerate. Such a rule would be in conflict with the doctrine of the presumption of innocence. It is unfortunate that in a case involving so much time, labor and expense a prosecutor in his zeal to secure a conviction should permit himself to overstep proper bounds and by improper means attempt to create a conviction in the minds of the jury of the guilt of the defendant.

Defendant in error insists that plaintiff in error has been so clearly proven guilty that the error complained of could not have affected the result of the trial and the jury could not have returned a different verdict, and relies upon the rule applied in People v. McCann, 247 Ill. 130, People v. Cleminson, 250 id. 135, People v. Burger, 259 id. 284, and People v. Strosnider, 264 id. 434, to sustain the judgment. The rule applied in those cases has never been applied except where it clearly and conclusively appeared to the court, from the whole record, that without regard to the error committed the result must have been the same. In this case it would be impossible to determine by any recognized

standard the effect of this statement and the ruling of the court upon the jury. The jury were, in effect, told by the court that they should presume that plaintiff in error was guilty of the crime charged because of his failure to call his co-defendants as witnesses in his behalf. To hold that we can look into a record, under such circumstances as are here presented, and determine that a defendant was properly convicted upon the theory that the jury could have come to no other conclusion notwithstanding such error, would be to deny one accused of crime the semblance of a trial. To apply the rule invoked in this case would be to hold, in effect, that once the court is convinced of the guilt of a defendant he is no longer entitled to the protection of the constitution or the law and his most sacred rights may be disregarded with impunity. There is a vast difference between admitting improper evidence in a case where the guilt of the accused has been otherwise clearly and conclusively proven, and a case where a defense is made in good faith which, if believed by the jury, must result in acquittal, and where the court holds, as a matter of law, that it is the duty of the accused to produce his co-defendants as witnesses and permits the jury to indulge in the presumption of guilt because of his failure to do so.

The statements of counsel above set out, together with the rulings of the court thereon, constitute prejudicial and reversible error.

W. H. Holly, one of the assistant State's attorneys of Cook county, was permitted, over objection, to make the following statement in his argument to the jury: "There is not a word of testimony given here except over the objection of these defendants. Have they come in here in the attitude of gentlemen who are willing to lay their cards on the table and say to the gentlemen of the jury, 'We want you to see these transactions and scrutinize them in detail; we are willing to show everything we have done in this bank and let you be the judge of whether we are guilty