Waid v. State

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58 So. 2d 146 (1952)

WAID v. STATE.

Supreme Court of Florida, Special Division A.

April 15, 1952.

Martin & Martin, Plant City, for appellant.

Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen. for appellee.

THOMAS, Justice.

The appellant's sole contention here is based on remarks of the prosecuting officer in the presence of the jury about the failure of the appellant to testify in his own behalf.

In support of the point he invokes Sec. 918.09, Florida Statutes 1949, and F.S.A., providing that a prosecuting attorney shall not be permitted "to comment on the failure of the accused to testify * * *."

But appellant's position is insecure for the simple reason that his counsel, while addressing the jury, introduced the subject by remarking upon the lack of testimony by the appellant, and the reason for it. What followed was nothing more than a retort by the attorney for the state.

A defendant may not reap the benefits of failure to testify, such as the escape of cross-examination, and then claim the protection the statute affords, if he plays upon that very failure. When he brings to the attention of the jury the want of testimony by him and the reason for the course he chose, he invites a rebuttal from his adversary, and of that he cannot complain.

Affirmed.

SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.