Opinion
No. 40612
Decided April 19, 1967.
Criminal law — Failure of accused to testify — Comment by prosecuting attorney and charge to jury thereon — Violation of constitutional rights.
APPEAL from the Court of Appeals for Columbiana County.
The defendant, Davis, was arrested for armed robbery. Witnesses were called at a preliminary hearing, but defendant did not testify. However, he did testify at the trial. He was indicted on a charge of armed robbery, pleaded not guilty and was tried to a jury, found guilty and sentenced.
On appeal to the Court of Appeals, the judgment of the trial court was affirmed.
The cause is now before this court on a motion for leave to appeal.
Mr. J. Warren Bettis, prosecuting attorney, for appellee.
Mr. George A. Aronson and Mr. Bernard Fineman, for appellant.
At the trial the state commented to the jury that the defendant failed to testify at the preliminary hearing. The court charged the jury that, by constitutional and statutory provisions, failure of accused to testify at his trial may be considered by the court and jury and may be the subject of comment by counsel, but that a preliminary hearing before a county judge is not a trial and "the fact that defendant did not testify at that hearing is not proper to be made the subject of comment by counsel in this trial and you are instructed to disregard that entirely, the preliminary hearing." In our opinion, this charge could not correct the error in the aforementioned conduct of the state.
The motion for leave to appeal is allowed. The judgment of the Court of Appeals is reversed on authority of Griffin v. California, 380 U.S. 609, and O'Connor v. Ohio, 17 L. Ed. 2d 189, and the cause is remanded to the trial court for a new trial.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.