The conflicting interests of the two co-defendants in this action have generated a narrow but important question relating to the scope of the privilege against self-incrimination: When one of two defendants jointly tried in a criminal proceeding in a federal court exercises his right not to testify, does the Fifth Amendment protect him from prejudicial comments on his silence made to the jury by an attorney for the co-defendant? Pointing to the fact that the United States attorney was free from blame, the Government argues that the general rule against commenting on the exercise of the privilege is inapplicable to the facts of this case. We reject this contention. In a criminal trial in a federal court an accused has a constitutionally guaranteed right of silence free from prejudicial comments, even when they come only from a co-defendant's attorney. If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately.

Carlos Garza de Luna and Adolfo Gomez, cousins, were charged jointly in a two-count indictment with receiving and facilitating the transportation and concealment of a narcotic drug and with purchasing and acquiring a narcotic drug in violation of the Narcotic Drug Import and Export Act. Each hired his own attorney. Each attorney defended his client as he saw best, without regard to the interests of the other defendant. Before trial Gomez moved for a severance. The motion was denied. At the trial in San Antonio, Texas, de Luna, a Mexican national, did not take the stand. Gomez, a resident of San Antonio, took the stand and produced members of his family and other witnesses to testify in his behalf. He put all the blame on de Luna. According to Gomez, he was an innocent victim of circumstances; his only connection with the narcotics was when he and de Luna were riding in Gomez's automobile; de Luna saw the police coming, tossed a package (the narcotics) to him and told him to throw it out of the window. The police saw Gomez throw the package. De Luna's attorney argued that the man he represented was being made a scapegoat; that the police officers testified they had not seen de Luna toss the package to Gomez and had seen no movement in the car although they were alongside it; that the sole culprit was Gomez.

In accordance with his theory of the case and impelled by a proper sense of duty to his client, Gomez's attorney, in arguing to the jury, contrasted Gomez's willingness with de Luna's unwillingness to take the stand. He stated plainly that an honest man is not afraid to take the stand and testify.1 He said: "Well, at least one man was honest enough and had courage enough to take the stand and subject himself to cross examination and tell you the whole story, and tell you that, `Yes, I first colored the story, but when I got back to my senses I told the truth, and that's the whole thing.' ¶ You haven't heard a word from this man [de Luna]."

This comment followed on the heels of somewhat similar comment to which de Luna's attorney had objected strenuously as "inflammatory and prejudicial". These were not casual or isolated references; they were integral to Gomez's defense. And considering the case from Gomez's point of view, his attorneys should be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party's failure to produce material evidence in his possession or to call witnesses who have knowledge of pertinent facts. Gomez has rights as well as de Luna, and they should be no less than if he were prosecuted singly. His right to confrontation allows him to invoke every inference from de Luna's absence from the stand.

The joint trial, the fact situation, and Gomez's defense placed the trial judge in a dilemma. At the time of the prejudicial remarks and again in his formal charge, he instructed the jury to disregard the fact that de Luna did not testify.2 Yet, in justice to Gomez, the trial judge owed and gave the following instruction:

"The defendant Adolfo O. Gomez has taken the stand and testified in his own behalf in this case. A defendant cannot, in a criminal case, be compelled to take the witness stand and to testify. Whether he testifies or does not testify is a matter of his own choosing.

"When, however, a defendant elects to take the witness stand and testify, then you have no right to disregard his testimony because he is accused of a crime. When a defendant does testify, he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness."

No objection can be taken to such instructions in the ordinary case. None can be taken in this case, as far as justice to Gomez is concerned. But here, on top of comments prejudicial to de Luna, such instructions led the jury in the very direction to which the comments of Gomez's attorney pointed.

Thus, the joint trial of the two defendants put Justice to the task of simultaneously facing in opposite directions. And Justice is not Janus-faced.

The jury found Gomez not guilty on both counts of the indictment, de Luna guilty on both counts. The district judge imposed a sentence of seven years.

The history3 of the development of the right of silence is a history of accretions, not of an avulsion.4 The privilege against self-incrimination, even as a limited privilege, is not found in Magna Carta,5 the Petition of Right, the Bill of Rights of 1689, or other basic English sources of our liberties.6 The first major constitutional document in which it appeared was the Virginia Bill of Rights in 1776. Yet, from obscure beginnings and subject to eroding currents it has developed into what Dean Griswold has described as "one of the great landmarks in man's struggle to make himself civilized."7

The privilege has never lacked for critics — many of them distinguished jurists and legal scholars. They say, "If we assume the continuance of trial by an impartial jury before a competent judge in public, it is difficult to understand how an accused represented by competent counsel can be unfairly treated by being required to testify."8 The classic attack on the policy of the privilege was made by Jeremy Bentham: "Only the guilty profit from the exclusion [the privilege]."9 No less a judge than Justice Cardozo, in a passage often quoted, said: "Justice * * * would not perish if the accused were subject to a duty to respond to orderly inquiry".10 Professor Wigmore was consistently unfriendly to the privilege, especially to its recognition when there was no direct coercion by the Government and when there was no formal charge to which the unanswered questions relate; his writings are an inexhaustible quarry of quotations apt for use against the policy of the privilege.11 More often than not, the attack on the privilege has been oblique, directed at limiting its scope or undermining its effect by permitting judge and prosecutor to comment on a defendant's exercise of the privilege and permitting the fact-trier to draw all reasonable inferences.12 Criticism of the privilege can be supported by excursions into history to show that the privilege is not what it used to be;13 that, historically, it could not be asserted by one formerly accused or one not coerced directly by the State.14 But the critics, "in their over-emphasis on the history of the Fifth Amendment privilege overlook the fact that a noble principle often transcends its origins, that creative misunderstandings account for some of our most cherished values and institutions; such a misunderstanding may be the mother of invention."15

It may be historically true, and Professor Wigmore documents it, that in the first few hundred years of its growth the resistance to the oath ex officio as compulsory self-accusation represented mainly a jurisdictional struggle between State and Church, and between common law courts and ecclesiastical courts; it was "not to protect from answers in the king's court of justice". But the struggle against the inquisitio and oath ex officio on the ground that a man is entitled to be formally accused eventually transcended the jurisdictional questions.16 It may be that Sir Edward Coke, the first to use the maxim, nemo tenetur prodere seipsum,17 objected to the oath, not because of his interest in protecting the individual against the state, but because he objected to the intrusion of the clergy into the field of criminal law; the Court of High Commission and the Court of Star Chamber had no business putting an accused to the oath except in cases concerning marriages and wills. Nevertheless, the association of the prerogative courts with heresy and treason (crimes having to do with the individual's beliefs), the association of the Star Chamber with the rack, the opposition to the oath from Lollards, Puritans, Levellers, and other non-comformists led directly to the abolition of the High Commission and the Star Chamber, the prohibition of the oath,18 and the ultimate triumph of the accusatorial system, all in the general direction of the freedom to speak and the freedom not to speak. It may be that John Lilbourne did not object to answering questions relating to the specific charges against him; he objected to being questioned as to offenses with which he was not charged. "Seeing", he said, "the things for which I am imprisoned cannot be proved against me, you will get other matter out of my examination."19 Yet, so it has been said, "it seems quite clear that we owe the privilege today primarily to Freeborn John Lilbourne."20 The Long Parliament that did away with the High Commission and the Star Chamber and that forbade ecclesiastical courts to administer the oath ex officio or any oath requiring a person to accuse himself of crime, set aside Lilbourne's conviction, "as illegal, and most unjust, against the liberty of the subject, and law of the land, and Magna Carta, and unfit to continue upon the record."

By the middle of the seventeenth century the privilege against being questioned until accused had become firmly embedded in the common law as a broad right to remain silent whenever an answer might incriminate. The right was recognized in civil as well as criminal proceedings, and applied to witnesses as well as to defendants. Carrying the right to its logical conclusion — although it now seems a reductio ad absurdum — for two hundred years a defendant in a criminal case was not permitted to testify. The importance of the privilege then shifted to potential defendants.

When the colonists first came to this country it was at a time when the Puritans strongly opposed the oath ex officio. They carried with them their spirit of nonconformity. They opposed the inquisitorial methods of the royal governors, as they had opposed the oppressive practices of the Crown and the Star Chamber.21 The Puritans were not the only colonists who carried strong recollections of the struggle against compulsory self-accusation.22 In 1776 the Virginia Declaration of Rights provided that a person could not "be compelled to give evidence against himself". By 1784 seven state constitutions banned self-incrimination.23

The framers of the Fifth Amendment chose language susceptible of a narrow reading: "No person * * * shall be compelled in any criminal case to be a witness against himself." This would seem to be limited to witnesses testifying in criminal proceedings only; Madison could hardly have had in mind an accused exercising the privilege against self-incrimination at a time when a defendant was incompetent to testify.24 Our courts, however, have not stood for a narrow constitutional construction of the Fifth Amendment based on a literal reading of the language in the light of its historical origins. The privilege is not limited to witnesses.25 It is not limited to criminal proceedings.26 It is not limited to cases involving direct compulsion to testify.27 The scope of its application includes a wide variety of situations that would have astonished the founding fathers.

The Supreme Court stands firmly for a broad view of the right. "To apply the privilege narrowly or begrudgingly — to treat it as an historical relic, at most merely to be tolerated — is to ignore its development and purpose".28 "This constitutional protection must not be interpreted in a hostile or niggardly spirit."29 The Fifth Amendment "must have a broad construction in favor of the right which it was intended to secure."30

Summarizing and of course greatly oversimplifying it, jurisdictional objections against overreaching by ecclesiastical courts and a resistance movement against oppressive inquisitorial practices which led to the great civil and religious reforms in the seventeenth and eighteenth centuries resulted in recognition of the privilege against self-incrimination by one not formally accused. This limited privilege against compulsory self-incrimination until formally accused has now developed into a broad right of silence, a freedom not to speak — complementing freedom of speech.31 Because the right is the result of successive accretions, it is not as severely bounded by historical origins, surveyed as of an early time, as are some legal institutions. It is more important to consider its line of growth as indicative of an expanding right capable of encompassing new and novel situations today as in the past.32 If the expansion of the individual's right of silence comes at the expense of the power and efficiency of the State, that is but in accord with the nature of the right and its historical development. "[B]oth the safeguard of the Constitution and the common law rule spring alike from that sentiment of personal self-respect, liberty, independence and dignity which has inhabited the breast of English speaking peoples for centuries, and to save which they have always been ready to sacrifice any governmental facilities and conveniences."33

In the common law in England until 1898 and in this country until after the Civil War, the incompetency of an accused to testify made the effect of his silence a metaphysical question. It ceased to be metaphysical when statutes were enacted giving defendants the option to testify in their behalf.34 To make the privilege against self-incrimination effective and to preserve the presumption of innocence, almost all of the states adopted laws forbidding comment on a defendant's neglect or refusal to testify and decreeing that no inference should be drawn from his silence.35 In 1878 Congress adopted a statute allowing the defendant to testify in federal cases. The pertinent federal statute, 18 U.S. C.A. § 3481, on which the appellant relies in addition to relying on the Fifth Amendment, provides that "the person charged shall, at his own request, be a competent witness" and "[h]is failure to make such request shall not create any presumption against him".

It is worth noting that this statute, like the Fifth Amendment, does not speak in terms of "privilege". "Privilege" could connote a special benefit necessarily carrying a strict construction. The language is the language of rights and freedoms. The statutory option is not couched as a limitation on the prosecution. It carries no necessary implication that the absence of any presumption of guilt means no more than a ban against a prosecutor or trial judge drawing inferences of guilt and commenting on the inferences or presumptions silence might raise. Together, the constitutional grant and the statutory option seem to give an accused in a criminal trial an absolute right to silence, should he exercise the option, carrying complete freedom from adverse comment and from harmful presumptions (and inferences) based on assertion of the right.

Even in situations not involving criminal proceedings, the Supreme Court has observed that the "privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury". Justice Clark, in Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 557, 76 S. Ct. 637, 100 L. Ed. 692. In Grunewald v. United States, 1957, 353 U.S. 391, 421, 77 S. Ct. 963, 1 L. Ed. 2d 931 Justice Harlan, for the majority of the Court, pointed out that "recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege" is "to protect `the innocent who otherwise might be ensnared by ambiguous circumstances' (Slochower)". Concurring, Justice Black said:

"[There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of these constitutional privileges is largely destroyed if persons can be penalized for relying on them."

A fortiori, a defendant in a criminal case, accorded the benefit of the presumption of innocence, should not be penalized for relying on a constitutional right.36

If comment on an accused's silence is improper for judge and prosecutor, it is because of the effect on the jury, not just because the comment comes from representatives of the State.37 Indeed, the effect on the jury of comment by a co-defendant's attorney might be more harmful than if it comes from judge or prosecutor. A judge, in keeping with his high degree of responsibility to conduct a fair trial, would be expected to give a balanced, moderate explanation of the inferences to be drawn from silence. Similarly, but to a lesser degree, a prosecutor would be expected to recognize his responsibility for fair comment. But much less restraint can be expected from an attorney to whom no little latitude is allowed when zeal, emotion, eloquence, and the advocate's afflatus take hold of a jury argument.

Even if it were true that reasonable men cannot avoid drawing "natural inferences from an accused's silence," that is quite a different thing from having the silence emphasized by comment. The imputation of guilt from silence, if it does nothing else, may confuse the jury as to the presumption of innocence in favor of the accused.

Here it is by no means certain that the inference Gomez's attorney drew is warranted. De Luna was a Mexican national, in a strange city. He was surrounded by Gomez's family, who came to testify for Gomez. In the "ambiguous circumstances" of this case an innocent man, if he has language difficulties, if he is excessively nervous, if he is placed at a disadvantage as against his co-defendant, or if he has had a previous record of convictions or association with narcotics offenders, might very well decide that his appearance on the stand would subject him to a risk of being misunderstood or convicted of guilt by association, that would be disproportionate to the advantage of testifying truthfully. He is entitled to make that choice.

We have found no case directly in point. Counsel for the United States referred us to Commonwealth v. Hassan, 1920, S.Jud.Ct.Mass., 235 Mass. 26, 126 N.E. 287. In that case the defendant was indicted with a co-defendant for murder. There was little, if any, doubt that the victim was killed by a revolver fired by one of the two defendants. The defendant who was convicted failed to explain the presence of cartridges in his shoes, a failure commented upon by the co-defendant's attorney in his argument to the jury. Counsel for the defendant presented a number of requests for instructions to the Clerk of Court but did not ask the Court to grant his requests until after the argument. One of these requested charges was that the defendant's failure to explain the cartridges could not be considered against him. The Supreme Judicial Court upheld the trial judge's ruling that the requests were not seasonably presented, because they were not presented before the argument. By way of dictum the court did say:

"If this [reference by the co-defendant's attorney] was regarded as improper, the attention of the judge should have been called to it at once. * * * Moreover, no argument whatsoever was made upon the point by the district attorney or prosecuting officer, who alone is within the purview of the statute. It does not apply to arguments made in behalf of a codefendant." Commonwealth v. Hassan, 1920, 235 Mass. 26, 126 N.E. 287, 289.

A carefully considered opinion of the Supreme Judicial Court of Massachusetts is entitled to great respect. But this statement is not necessary to the decision and in any event seems to rest on specific language of the Massachusetts statute, St.1912, c. 325, stating that refusal to testify shall not be made the subject of any comment by the prosecution or by the court.

Closer on principle — if distinguishable on the facts — are cases such as United States v. Housing Foundation, 3 Cir., 1949, 176 F.2d 665, holding that a defendant cannot compel a co-defendant to testify. Similarly, in State v. Medley, S.Ct.N.Car., 1919, 178 N.C. 710, 100 S.E. 591, the trial judge refused to allow a defendant to call a co-defendant to the stand when the facts showed that the evidence sought must prejudice the codefendant's defense:

"* * * it is very difficult to safeguard the constitutional guaranty of such a witness against self-incrimination, when the question of his own guilt is involved in the issue and before the same jury. * * * True, as appellant contends, it is ordinarily desirable that a witness be called to the stand, so that the court may more intelligently determine whether the questions and answers will trench upon his constitutional privilege; but on the facts of the present record, and considering the issue, the position of the parties concerning it, and the evidence as proposed, we are of opinion that the power of his honor in the premises has been providently exercised, and we approve his ruling in refusing to have the witness called to the stand and subjected to the proposed examination."

Compare State v. Gambino, La.Sup.Ct., 1952, 221 La. 1039, 61 So. 2d 732, holding that a person jointly charged with a defendant but not on trial with him could be compelled to take the stand, since he could claim his privilege when asked a question requiring an incriminating answer.

Blair v. Commonwealth, 1936, 166 Va. 715, 185 S.E. 900, is another case which, on principle, supports this Court's holding. In that case the pressure to testify did not come from the trial judge or the prosecutor. Just as the jury was about to retire one of the jurors asked the court if the jury could have the benefit of the accused's testimony. Under this compulsion, the defendant's counsel then offered the accused as a witness. Notwithstanding the offer, which raised a question of waiver, the juror's inquiry was held ground for reversal.

Counsel for the appellee quotes from Knapp v. Schweitzer, 1958, 357 U.S. 371, 380, 78 S. Ct. 1302, 2 L. Ed. 2d 1393: "It is plain that the amendment can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole — although deeply valuable — purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his mouth." This general language merely states the principle that the Fifth Amendment is not applicable to state action, at least to a state court prosecution.

This proceeding is one in the federal courts. The Federal Government cannot wash its hands of responsibility for the compulsion to testify resulting from the court's inaction. The exclusive control of the conduct of the trial is in the hands of the presiding federal judge. He is "not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law."38 He has the decisive role in assuring an accused a fair trial according to federal standards. "Federal judges are not referees at prize fights but functionaries of justice."39 In the recent case of Porter v. United States, 5 Cir., 1962, 298 F.2d 461, a post-conviction relief petition alleged inadequacy of representation in that the attorney for the defendant, who relied on the defense of entrapment, was also the attorney for one of the police officers who was involved in the entrapment. In reversing the district court's summary dismissal of the Section 2255 petition, this Court, through Judge Brown, reached conclusions similar to those we reach here:

"A Court may not countenance it and must, on the contrary, take effective action just as we are certain the careful Judge below would have done had the facts been known at or before the commencement of the criminal trial. But where this has been allowed to occur, either through a calloused conscience of the attorney, or ignorance of the true facts by the Judge, the trial is not the fair one demanded by the Constitution. And this is so without regard to the presence or absence of any action of a strictly governmental nature which can be ascribed to the prosecution as the transgressing agency or imputed to the trial court on traditional notions of error on the Judge's part."

Here, to meet the requirements of a fair trial as embodied in the Fifth Amendment,40 the trial judge must protect an accused's right of silence. The trial judge's approval of an improper comment or refusal to disapprove the comment and do whatever is necessary to protect a defendant from being penalized by relying on his constitutional right amounts, in our opinion, to sufficient participation in the comment or sanction of the comment so that it may be properly characterized as a violation of the Fifth Amendment and Section 3481. The narrow view advocated by the Government would lead to complete nullification of the constitutional right whenever one of several co-defendants (one of whom must be guilty) might seek to assert his right of silence. Mr. Justice Rutledge's comment on the privilege in 1938 rings true in 1962:

"With world events running as they have been, there is special reason at this time for not relaxing the old personal freedoms won, as this one was, through centuries of struggle. * * * There is in it the wisdom of centuries if not that of decades. Large in this is a sense of fairness to the person accused, a respect for his individual integrity, and accusation or even in guilt but larger still is the sense of the court's own part in justice and its administration."41

The court's instructions were intended, of course, to neutralize the effect of the comments. But considering the head-on collision between the two defendants, the repetition of the comments, and the extended colloquy over the comments between the trial judge and the lawyers, the imputation of guilt to de Luna was magnified to such an extent that it seems unrealistic to think any instruction to the jury could undo the prejudicial effects of the reference to de Luna's silence.42 The seed of inference was so well planted, it is fair to assume that it germinated.

In short, for each of the defendants to see the face of Justice they must be tried separately.

The government's final argument is that the impropriety of the comments on de Luna's failure to testify was in any event harmless error. The Government maintains that the record in the instant case "shrieks of the guilt" of the appellant. Lutwak v. United States, 1953, 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593; Thomas v. United States, 5 Cir., 1961, 287 F.2d 527, cert. denied, 366 U.S. 961, 81 S. Ct. 1923, 6 L. Ed. 2d 1254; Fogarty v. United States, 5 Cir., 1959, 263 F.2d 201, cert. denied, 360 U.S. 919, 79 S. Ct. 1437, 3 L. Ed. 2d 1534. The harmless error rule has restricted applicability in criminal cases. Since the defendant holds a carefully guarded right to have his guilt adjudged by the jury, an appellate court should be slow to assume that an error in the trial was inconsequential. In none of the cited cases did the Court base its decision squarely upon the harmless error doctrine. In Lutwak it was used merely to buttress the decision that the conviction should be affirmed after the Court already had found that there was no serious error in the trial proceedings. In Thomas and in Fogarty this Court referred to the strong evidence of guilt to support its decision not to take special notice of an alleged error in the trial that had not been properly preserved for appeal by timely objection. The instant case is quite different. The error was properly preserved for appeal, and in the circumstances of this case the error was serious.

The judgment against de Luna is reversed and remanded.

BELL, Circuit Judge (concurring specially).

With deference to the majority, I think this matter is controlled over-all by the right to a fair trial under the Sixth Amendment to the Constitution. The right of de Luna under the Fifth Amendment, and Title 18 U.S.C.A. § 3481, not to have the fact that he failed to testify commented upon is involved primarily. But the right of Gomez to take the stand under § 3481 and to a full and fair defense, and the right of the public to the enforcement of the criminal statutes are also involved. These rights must be balanced by the court whose duty it is to see that a fair trial is afforded while at the same time protecting all rights. And my disagreement with the majority centers around the scope of the right of Gomez.

It was proper in the defense of Gomez for his counsel to comment upon the fact that he had taken the stand, but it was improper for him to comment upon the fact that de Luna had not taken the stand. The inference which plainly would arise against de Luna by comments to the effect that Gomez testified, like the inference that arises in any event from the failure to testify, is one that must be checkmated by admonition of the court in charge. Cf. Bruno v. United States, 1939, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257.

There is no authority whatever for the proposition that Gomez would in any wise have been deprived of a fair trial if the comments regarding the failure of de Luna to testify had not been made. He had no right to go that far. He did have the right to testify against de Luna as he did. Rickey v. United States, 5 Cir., 1957, 242 F.2d 583; Rowan v. United States, 5 Cir., 1922, 281 F. 137, cert. den., 260 U.S. 721, 43 S. Ct. 12, 67 L. Ed. 481. But no presumption or inference of guilt was permissible against de Luna from the fact that he did not testify. Bradford v. United States, 5 Cir., 1942, 130 F.2d 630, cert. den., 317 U.S. 683, 63 S. Ct. 205, 87 L. Ed. 547. All comment in the presence of the jury upon his omission to testify was forbidden. Wilson v. United States, 1893, 149 U.S. 60, 13 S. Ct. 765, 37 L. Ed. 650; Stewart v. United States, 1961, 366 U.S. 1, 81 S. Ct. 941, 6 L. Ed. 2d 84.

The charge of the court took care of the rights of both in the ordinary posture:

"The defendant Adolfo O. Gomez has taken the stand and testified in his own behalf in this case. A defendant cannot, in a criminal case, be compelled to take the witness stand and to testify. Whether he testifies or does not testify is a matter of his own choosing.

"When, however, a defendant elects to take the witness stand and testify, then you have no right to disregard his testimony because he is accused of a crime. When a defendant does testify, he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness.

"In determining the degree of credibility that should be accorded by you to the defendant's testimony, you are entitled to take into consideration the fact that he is the defendant and the very keen personal interest that he has in the result of your verdict.

"The defendant Carlos Garza de Luna has not testified in this case. You are instructed that under the law a defendant in a criminal case may take the stand and testify in his own behalf if he chooses, but the defendant is not required to testify, and you are charged that the failure of the defendant to take the stand in his own behalf in this case will not be considered by you as any evidence at all of his guilt as to the charge contained in the indictment in this case, and in your retirement you will not consider or refer to the fact that the defendant did not testify."

The opinion of the majority will create an intolerable procedural problem. If Gomez, or others similarly situated, claims the right which the majority holds that he has to comment on the failure of de Luna to testify, a mistrial will be required at the instance of his co-defendant who did not take the stand. In addition, severance in advance of trial may be required where there is a representation to the court that one codefendant does not expect to take the stand while another or others do expect to testify, and claim their right to comment upon the failure of the other to testify. This would eliminate joint trials, or vest in a defendant the right to a mistrial during final arguments, or in the alternative create built-in reversible error, all in the discretion of the defendants. The law contemplates no such end.

The Sixth Amendment requires a fair trial. And the facts and circumstances as they arise must be considered. Here counsel for Gomez was allowed to comment, over objection made, on three occasions regarding the failure of de Luna to take the stand. The court overruled the objection on the ground that counsel for the co-defendant, as distinguished from the prosecution, could comment. This was error. When counsel for Gomez first alluded in argument to the fact that de Luna had not taken the stand, the objection should have been sustained, counsel admonished, and the jury instructed as to the rights of de Luna in the premises and to disregard the remark. This would have been the minimum corrective action to insure a fair trial to de Luna. Because it was not done, I join in the opinion of the majority to reverse. I do not agree that Gomez had the right to so comment.