Reversing.
Appellant was convicted of the offense of assault and battery and fined $250.00. He was present but did not testify on the trial. In allusion to this the Commonwealth's attorney in his closing argument to the jury said: "The defendant has been sitting there during the trial of the case and has made no explanation why he had beat up (the prosecuting witness) Willie Stacy."
Defendant objected and the court told the jury "that was incompetent and improper and should not be commented on," whereupon the attorney said "that the defendant had only set there as an exhibit," to which defendant objected, there being no other ruling.
Section 1645, Ky. Statutes, provides that in a criminal prosecution the defendant may testify in his own behalf, and continues, "but his failure to do so shall not be commented upon, or be allowed to create any presumption against him."
This statute declares an elementary rule of practice and should be upheld by prosecuting officials under their oaths of office. Courts cannot tolerate a violation of it and maintain the dignity of the Commonwealth and their own self-respect. When clearly disregarded, whether wilfully or through inadvertence or ignorance, a verdict of guilty based thereon should be set aside and a new trial granted, as it must be presumed that an unlawful prosecution is prejudicial to the defendant. Miller v. Com.,
Wherefore, judgment is reversed and cause remanded for proceedings consistent with this opinion.
