State v. Smith

Full title: THE STATE OF OHIO, APPELLEE v. SMITH, APPELLANT

Court: Court of Appeals of Ohio

Date published: May 8, 1967

226 N.E.2d 807 (Ohio Ct. App. 1967)

226 N.E.2d 807

Opinion

No. 10171

Decided May 8, 1967.

Criminal law — Failure of accused to testify — Comment by prosecuting attorney in argument to jury — Violation of constitutional right.

It is error for the trial court in a criminal case not to declare a mistrial where the prosecution, in argument to the jury, says that defendant "never took the stand to tell you that."

APPEAL: Court of Appeals for Hamilton County.

Mr. Melvin G. Rueger and Mr. Calvin W. Prem, for appellee.

Mr. Eugene D. Smith, for appellant.

LONG, P. J.

An examination of the record shows that the prosecutor, in his argument to the jury, said: "This man never took the stand to tell you that."

This is a violation of the rule of Griffin v. California, 380 U.S. 609.

Defendant made a motion to declare a mistrial, which was overruled; and, in the opinion of this court, this was error.

The judgment is, therefore, reversed, and the cause is remanded for further proceedings in accordance with this opinion.

Judgment reversed.

HILDEBRANT, J., concurs.

HOVER, J., not participating.