# People v. Munday > Illinois Supreme Court · June 21, 1917 · 280 Ill. 32 URL: https://www.frixlaw.com/law-library/cases/6978223 ## Case - **Full name:** The People of the State of Illinois, in Error v. Charles B. Munday, in Error - **Court:** Illinois Supreme Court - **Decided:** June 21, 1917 - **Citations:** 280 Ill. 32; 117 N.E. 286 - **Precedential status:** Published - **Opinion:** Dissent by Craig - **Judges:** Carter, Cartwright, Cooke, Craig - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6978223 ## Opinion text Mr. Justice Craig, dissenting: I concur in the dissenting opinion of Mr. Chief Justice Carter. There is a conflict in the authorities as to whether comments by the State’s attorney on the failure of a defendant in a criminal case to produce his co-defendants as witnesses constitute error which is ground for reversal. The reason for this conflict is that every case must be decided ultimately on its own peculiar facts and the law applicable thereto. In the very nature of things, remarks or statements made in the presence of the jury or arguments of the State’s attorney that would be highly prejudicial in one case would be entirely harmless in another. ' In any case the questions to be determined are, first, are such statements improper; and second, if improper, are they prejudicial. The reasonable meaning of the statement that it was the duty of plaintiff in error to call his co-defendants is, that it was a duty the plaintiff in error owed himself in properly presenting his defense, as distinguished from a legal duty or obligation on his part, to call them to testify. In this case the plaintiff in error moved for and obtained a separate trial and a change of venue to another county. Thereafter, so far as his trial was concerned, under the circumstances, any comment on his failure to call his co-defendants as witnesses was the same as commenting on a failure to call any other material witness presumably under his influence or control, for it must be conceded that these co-defendants, who had been actively associated with him in his banking operations, were material witnesses, and they, better than anyone else, could by their testimony throw light on the transactions of the plaintiff in error which are charged to have been criminal. In this connection I think the true rule is laid down in People v. McGarry, 136 Mich. 316 , in which "it is said, on page 328 of the opinion: “There are many cases which justify comment upon the failure of a party to produce particular witnesses, and the rule extends to criminal cases. (3 Rice on Evidence, 29; State v. Ward, 61 Vt. 153 ; 17 Atl. 483 .) It is not an unqualified right and depends upon the circumstances of the case. We think it applies to a deposition taken by the party and not used, and to accomplices and other witnesses within their control or with whom they are or have been closely associated, especially where such witnesses are in a position to speak on matters damaging to such party, already in evidence.—1 Starkie on Evidence, 34; 3 id. 487 . See 2 Ency. of Pl. & Pr. p. 714, and notes, where cases are cited, and our own cases of Gavigan v. Scott, 51 Mich. 373 ; 16 N. W. 769 ; Cook v. Insurance Co. 86 Mich. 554 ; 49 N. W. 474 .” To the same effect as to comments on the failure of a defendant in a criminal case to produce witnesses which he can produce are State v. Shelly, 100 Minn, 100; Commonwealth v. Weber, 167 Pa. St. 153; People v. Honey, 92 N. Y. 554 ; Hopson v. State, (Ark.) 180 S. W. Rep. 485 . In this State no comment or reference can be made to the failure of a defendant in a criminal case to testify, because of the statute in that regard, but there is no statute which forbids comment in reference to the failure of a co-defendant to testify or be called as a witness by defendant. I do not think there is any good reason, under the facts of the present case, why those who were co-defendants with plaintiff in error should be considered as other than mere witnesses. If this is correct, then, as a matter of law, it was not error for the State’s attorney of Grundy county to make the statement he did, and the propriety of the statement of the assistant State’s attorney of Cook county is amply supported by the above authorities. ' The effect of such remarks is entirely conjectural, and it would certainly seem, from the length of the trial and all the circumstances shown by the record, that the prosecution was conducted fairly and according to law and the plaintiff in error was given every opportunity to present his defense and that none of the matters complained of can be said to constitute prejudicial error sufficient to justify a reversal. There are other considerations that far outweigh such alleged errors in the trial. There was ample proof to support the verdict and judgment against the plaintiff in error. The criminal acts with which he was charged involved several banks and resulted in enormous losses to hundreds of stockholders and thousands of unsuspecting depositors in those institutions. While there was no question about the result or effect of such transactions, it was difficult and expensive for the People to prove that they were criminal and that the plaintiff in error was guilty as charged. It would be most extraordinary if some errors had not been made in the course of such a long-drawn-out trial. On the whole the plaintiff in error had a fair trial in the circuit court, and the judgment of that court has been affirmed by the Appellate Court after a full consideration of the case, as shown by the opinion of that court. In my opinion there' was no prejudicial error or error sufficient to justify a reversal, and the judgments of the circuit and Appellate Courts should not be reversed because of slight remarks of counsel that in all probability did not in ány way affect the result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6978223. Public record. Not legal advice.