raise any presumption in Missouri

1966The constitutional provisions protect one from being compelled to testify against himself in a criminal prosecution; the statute and rule provide that “If the accused shall not avail himself * * * of his * * * right to testify, * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, * * Such provisions have been held not to have been violated by arguments similar to the one in question, e. g.: State v. Varner, Mo., 329 S.W.2d 623, 633 [18], “* * * they have offered no def

1960M.R., p. 189, provides: "If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place." I am convinced that the statement of the assistant prosecuting attorney was intended to and, in fact, did refer to defendant's failure to testify in his own behalf; and that,

1982Appellant cites State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974) in support of his contention that this was a direct reference to appellant’s failure to testify.

1980State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970), held that only direct and certain references to the failure of the accused to testify were proscribed and allowed a prosecutor’s comments that defendant could have called “any witnesses he wanted to,” that he was “free to offer any evidence he had,” and that defendant had offered no evidence.

1980State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970), held that only direct and certain references to the failure of the accused to testify were proscribed and allowed a prosecutor's comments that defendant could have called "any witnesses he wanted to," that he was "free to offer any evidence he had," and that defendant had offered no evidence.

1976The flaw in defendant’s contention is demonstrated by the following language appearing in State v. Morgan, 444 S.W.2d 490, 493 [2] (Mo.1969): “State v. Craig, Mo.Sup., 406 S.W.2d 618, 624 [12], held that the comment that the testimony of the state’s witnesses is ‘uncontradicted’ is not an improper comment on defendant’s failure to testify, citing State v. Willis, Mo.Sup., 328 S.W.2d 593 , and authorities, 1. c. 595.

1972He further defines his position, submitting “that such a charge as was refused is mandatory, if requested, under the Fifth Amendment * * * and Section 546.270 * * He would support his position with Franano v. United States, D.C.W.D.Mo., 243 F.Supp. 709 , and cases from other jurisdictions cited l.c. 711 [6], and with Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 , relied upon by the district court at l.c. 712, to the effect that an accused, if he requests it, is entitled to a cautionary instruction that his failure to take the stand does not create any presumption or adver

1972He further defines his position, submitting “that such a charge as was refused is mandatory, if requested, under the Fifth Amendment * * * and Section 546.270 * * He would support his position with Franano v. United States, D.C.W.D.Mo., 243 F.Supp. 709 , and cases from other jurisdictions cited l.c. 711 [6], and with Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 , relied upon by the district court at l.c. 712, to the effect that an accused, if he requests it, is entitled to a cautionary instruction that his failure to take the stand does not create any presumption or adver

1972He further defines his position, submitting “that such a charge as was refused is mandatory, if requested, under the Fifth Amendment * * * and Section 546.270 * * He would support his position with Franano v. United States, D.C.W.D.Mo., 243 F.Supp. 709 , and cases from other jurisdictions cited l.c. 711 [6], and with Bruno v. United States, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 , relied upon by the district court at l.c. 712, to the effect that an accused, if he requests it, is entitled to a cautionary instruction that his failure to take the stand does not create any presumption or adver

1970In State v. De Witt, supra, 186 Mo. 61, 65-67 , 84 S.W. 956 , 957-958, this Court said: “A further contention is made that the court erred in instructing the jury ‘that the fact that the defendant did not testify should not be considered by the jury in arriving at a verdict in this case, and no juror should be prejudiced against the defendant because he did not testify in the case.’ Our statute (section 2638, Rev.St. 1899) provides that: ‘If the accused shall not avail himself or herself of his or her right to testify or of the testimony of the wife or husband on the trial in the case, it shal

1970In State v. De Witt, supra, 186 Mo. 61, 65-67 , 84 S.W. 956 , 957-958, this Court said: "A further contention is made that the court erred in instructing the jury `that the fact that the defendant did not testify should not be considered by the jury in arriving at a verdict in this case, and no juror should be prejudiced against the defendant because he did not testify in the case.' Our statute (section 2638, Rev.St. 1899) provides that: `If the accused shall not avail himself or herself of his or her right to testify or of the testimony of the wife or husband on the trial in the case, it shal

1970In a fact situation such as here presented, the scope of appellate review of the action of the trial court with reference to objections to the argument made is as stated in State v. Tiedt, 360 Mo. 594 , 229 S.W.2d 582 , 588: “Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or a discharge of the jury, is largely within the discretion of the trial court.

1970In a fact situation such as here presented, the scope of appellate review of the action of the trial court with reference to objections to the argument made is as stated in State v. Tiedt, 360 Mo. 594 , 229 S.W.2d 582 , 588: “Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or a discharge of the jury, is largely within the discretion of the trial court.

1969To borrow the analysis used in a similar problem in State v. Synder, 182 Mo. 462 , 82 S.W. 12, 31 , only the two boys and defendant were present when the alleged crime was committed, and as the two boys testified to it, there was no other person in existence save the defendant who could deny their statement as to what occurred, and no other conclusion can be drawn than that the prosecuting attorney did refer to defendant's failure to go on the witness stand and deny the statement of the boys and that the attention of the jury was thus called to defendant's failure to testify and to deny the st

1969To borrow the analysis used in a similar problem in State v. Synder, 182 Mo. 462 , 82 S.W. 12, 31 , only the two boys and defendant were present when the alleged crime was committed, and as the two boys testified to it, there was no other person in existence save the defendant who could deny their statement as to what occurred, and no other conclusion can be drawn than that the prosecuting attorney did refer to defendant's failure to go on the witness stand and deny the statement of the boys and that the attention of the jury was thus called to defendant's failure to testify and to deny the st

1968(S.Ct.Rule 26.08, V.A.M.R.), which reads as follows: “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” In 1893, this Court, in State v. Robinson, 117 Mo. 649, 663 , 23 S.W. 1066, 1070 , stated: “Another instruction, it is said, the court ought to h

1968(S.Ct.Rule 26.08, V.A.M.R.), which reads as follows: “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” In 1893, this Court, in State v. Robinson, 117 Mo. 649, 663 , 23 S.W. 1066, 1070 , stated: “Another instruction, it is said, the court ought to h

1966The constitutional provisions protect one from being compelled to testify against himself in a criminal prosecution; the statute and rule provide that “If the accused shall not avail himself * * * of his * * * right to testify, * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, * * Such provisions have been held not to have been violated by arguments similar to the one in question, e. g.: State v. Varner, Mo., 329 S.W.2d 623, 633 [18], “* * * they have offered no def

1966The constitutional provisions protect one from being compelled to testify against himself in a criminal prosecution; the statute and rule provide that “If the accused shall not avail himself * * * of his * * * right to testify, * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, * * Such provisions have been held not to have been violated by arguments similar to the one in question, e. g.: State v. Varner, Mo., 329 S.W.2d 623, 633 [18], “* * * they have offered no def

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1962State v. Long, 324 Mo. 205 , 22 S.W.2d 809 ; State v. Denison, 352 Mo. 572 , 178 S.W. 2d 449 ; State v. Revard, 341 Mo. 170 , 106 S.W.2d 906 ; State v. Rutledge, Mo.Sup., 267 S.W.2d 625 .

1950State v. Drummins, 274 Mo. 632 , 204 S.W. 271 ; State v. Watson, Mo.Sup., 1 S.W.2d 837 , 839; State v. Shuls, 329 Mo. 245 , 44 S.W.2d 94, 96 .

1950State v. Drummins, 274 Mo. 632 , 204 S.W. 271 ; State v. Watson, Mo.Sup., 1 S.W.2d 837 , 839; State v. Shuls, 329 Mo. 245 , 44 S.W.2d 94, 96 .

1950State v. Drummins, 274 Mo. 632 , 204 S.W. 271 ; State v. Watson, Mo.Sup., 1 S.W.2d 837 , 839; State v. Shuls, 329 Mo. 245 , 44 S.W.2d 94, 96 .

1950State v. Drummins, 274 Mo. 632 , 204 S.W. 271 ; State v. Watson, Mo.Sup., 1 S.W.2d 837 , 839; State v. Shuls, 329 Mo. 245 , 44 S.W.2d 94, 96 .

1903“Mr. Dawson, counsel for the plaintiff: I will say this: This woman whose virtue and sorrow has been so highly extolled knew all about these transactions — the wife — and she never attempted to explain to the jury where the policy was — whether it was in the bank or elsewhere.” Section 2638, Revised Statutes 1899, provides, that “if the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption,