Brandes v. State

WALKER, P. J. The court did not err in overruling the motion made by the defendant to exclude the evidence introduced by the state. That evidence tended to prove acts and admissions of the defendant Avhich furnished support for the inference that, Avithin the period covered by the indictment, he had committed the offense therein charged. The contention that the evidence had no such tendency is strikingly Avitkout merit. No error Avas committed by the court in its statement to the jury that “the fact that a defendant does not testify cannot be used or considered adversely to him or in his favor.” This statement Avas a part of an admonition to the jury not to consider the defendant’s failure to testify in the case, but to consider only the evidence Avkicli had been submitted to them. There Avas no impropriety in the court’s thus cautioning the jury. The satutory prohibition of a defendant’s failure to testify in the trial of a criminal charge against him being made “the subject of comment by counsel” (Code, § 7894) does not make it error for the court to caution the jury not to draw, any inference from the defendant’s failure to offer himself as a witness. There is no error in the record. Affirmed.