State v. . Johnston

Ashe, J. Besides other evidence offered on the part of the prosecution tending to show the guilt of the defendant, the state made proof that tracks were found on the outside of the house in a bank of ashes just under the window, which had been opened; that the tracks came from and led back to the house of the defendant; that they were peculiar, one being longer than the other, one shoe square-toed and the other round, and in one of the shoes the big toe protruded and made an impression on the ground; that the tracks corresponded, in size and in detail, with the tracks made by the defendant in the field where he was ploughing the next day. The defendant offered no evidence. The solicitor in his argument said, “if the defendant did not make the tracks, who did? If the defendant did not make them, if they were made by another, the defendant ought to show it.” There was no exception taken at the time to these remarks, but after verdict they were made the ground for the motion for a new trial, the defendant contending that the solicitor had gone beyond his duty, and violated the provision of law, which forbids conuneut on the fact that the prisoner does not offer himself as a witness. We do not appreciate the force of the exception. W’e are unable to see how the remarks of the solicitor are obnoxious to the objection made by the defendant. If the tracks were in fact made by any other person than the defendant, it was quite as competent for him to prove that fact by other witnesses who were acquainted with the tracks of that other person, as by himself. *625 There was nothing in the remarks which necessarily lead to the conclusion that the tracks, if made by another, must be proved by the witness himself. We are of the opinion the remarks of the solicitor were unobjectionable, and that there is no- ground for a venire de novo. There is no error. Let this be certified, &c. No error. Affirmed. ,