Broadway v. State

CARR, Presiding Judge.

The accused was convicted of keeping a gambling table. Title 14, Sec. 265, Code 1940.

*544The defendant did not testify in the case nor introduce any witnesses in his behalf.

During the argument to the jury the solicitor made this statement: “Mr. Smith criticizes our witnesses in this case, but Mr. Smith has not given us any witnesses to criticize.”

We are confronted with the task of determining whether or not this was a comment on the defendant’s failure to testify.

At common law the defendant in a criminal case was not a competent witness in his own behalf. This seemed to be…