# State v. Tiedt > Supreme Court of Missouri · April 10, 1950 · 360 Mo. 594 URL: https://www.frixlaw.com/law-library/cases/9682023 ## Case - **Full name:** State of Missouri, Respondent, v. Charles H. Tiedt, Appellant - **Court:** Supreme Court of Missouri - **Decided:** April 10, 1950 - **Citations:** 360 Mo. 594; 229 S.W.2d 582; 1950 Mo. LEXIS 624 - **Precedential status:** Published - **Opinion:** Dissent by Ellison - **Judges:** Gonkling, Clark, Hyde, Ellison, Leedy, Tipton - **Cited by:** 53 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/9682023 ## Opinion text ELLISON, J. (dissenting). — I respectfully dissent from the holding of the principal opinion that there was no reversible error in the argument of Assistant Prosecutor Duvall, wherein he referred directly to the failure of appellant Tiedt to testify at his trial, and stated if Tiedt had testified the State could have cross-examined him. The State contends the argument was provoked by the' argument of appellant’s counsel and was proper retaliation. And the trial court so held. This dissenting opinion is directed solely to that one point. From the beginning of our Federal and State governments their constitutions have provided the accused in-a 'criminal prosecution, shall not be compelled to testify against himself. 1 And the statutes and decisions in many jurisdictions have recognized that if the accused does take the witness stand in his own behalf he will be subject to cross-examination “against himself.” For this reason they excuse him from testifying at all, at his option. 2 *606 In this State ever since 1877 we have had two statutes, Sec’s 4081 and 4082, R. S. 1939, Mo. R. S. A., which have read since 1879 exactly as they do now. The first of these permits the accused (or spouse) to testify in a criminal prosecution but does not require him or her to do so, and makes such person subject to cross-examination on matters referred to in examination in chief. The second statute, Sec. 4082, which is involved here, provides that if the accused elects not to testify it shall not be construed to affect his guilt or innocence or to raise any presumption of guilt, nor shall it be referred to by any attorney in the case or be considered by the court or jury. This statute applies no matter how culpable the conduct of the accused may appear to have been. But it will be waived, of course, if the accused or his counsel refers to his failure to testify. In that event the prosecution also can refer to the same fact. The principal opinion holds on three grounds that the provisions of this latter statute were waived by the appellant’s counsel. The first one stated is that appellant’s counsel Landis in his opening statement to the jury referred to the fact that there had been a previous trial of the case [which was reversed and the cause remanded in 357 Mo. 115 , 206 SW. (2d) 524 ] at which appellant Tiedt had testified; and said, or indicated Tiedt would testify again in the instant case. The second is that appellant’s own counsel in argument referred to his presence in the court room. The third ground is that appellant’s counsel Dale in argument to the jury referred to a written but unsworn statement which appellant had made at the police station, and argued it was true. The State in its case in chief had proven to the jury in great detail by three-witnesses that the police and then prosecuting attorney had taken the unsworn statement from the appellant; that it was a faithful report of what he said; that he deliberated upon it; and that he executed it by interlining corrections, initialing each page and signing the whole. But having thus got the fact before the jury that appellant had made a written statement — thereby implying he had made some sort of a confession' — yet the State did not introduce the statement in evidence, but let it “lie on the table,” to use a legislative phrase. Thereafter near the close of the case for the defense, appellant’s counsel introduced the statement in evidence and read it to the jury. Having done so they did not put the appellant on .the stand, but stood on the written statement. And appellant’s counsel Dale in argument criticized the State for not introducing the statement after proving it, and argued it ivas true. Also he once referred to the fact that appellant was sitting in the court room. Following that argument Assistant Prosecutor Duvall answered, making the retaliatory argument complained of at the beginning of this opinion, to wit: “Mr, Dale complained of the fact that we didn’t introduce *607 Tiedt’s statement in evidence. Isn’t, that a "crime men? Of course his statement was taken. We, didn’t have any idea but what they would put him on the stand and we could have cross-examined him.” (Italics ours) Appellant’s counsel promptly made adequate objection — there is no dispute aborit that — but the court overruled it, however calling Mr. Duvall to the bench and saying “What in the World were you thinking?” and admonishing him to keep within the record. Then the court instructed the jury that the instructions declared the law of the case; that the arguments of.counsel were not evidence, and added: “The Court, Mr. Duvall, asks you to keep within the record and the law. As to the rights of this .defendant, counsel for .the defense should recognize that an attorney for the State has certain rights in answering arguments concerning your case, and the jury will disregard the last few remarks of counsel for the State, as to what the defense could have done, or as to what the State could have done in reference to” — appellant’s written statement. Thus the court in substance and effect told the jury that Mr. Duvall’s argument was proper retaliation; but that they should disregard his last few remarks about what the defense could have done [that is, putting the appellant on the stand] or as 'to what the State could have done [by introducing the written statement in evidence.] All above italics ours. In overruling the new trial motion the court stressed the foregoing argument of defense counsel, Mr. Dale, and said it “manifested by inference the fact that defendant did not personally take the witness stand” whereas Mr. Duvall “was arguing only in reference to”- — appellant’s written statement [which is obviously incorrect]; and that Mr. Dale’s “argument implied counsel for the State had failed in their duty.” Considering first the State’s point that appellant’s counsel in their opening statement disclosed the appellant had testified at the previous trial and indicated or said he woiild take the witness stand again. Under Sec. 4070(1), R. S. 1939, Mo. R. S. A. "the prosecution must start a criminal trial by making an opening statement and offering evidence on its case in chief. Under the same statute, Sec. 4070 (2), the defense next makes its opening statement and offers its controverting evidence. But the defense may elect to make its opening statement immediately following that for the State, and before any evidence has been offered on either side. State v. Jackson, 105 Mo. 196, 230 (5), 15 SW. 333. And that is what the defense did here. His counsel then did not know what"’evidence the State would adduce, other than as disclosed by the State’s opening statement. And that statement purported to detail testimony coming from witnesses. Only one reference was made to appellant’s written statement, and that bore on a collateral matter — his lack of acquaintance with one decedent and his antecedent relations with another. There -was little *608 or nothing to indicate it would be used by the State to prove the crime [and as eventuated, it was not]. In these circumstances it may well be that appellant’s counsel intended then to have him testify. But assuming they did, and for that reason so stated in their opening statement, it was not an admission or a promise but only' a statement of present intention based on the facts then disclosed. If that was all that had occurred would anyone say the bars were down and the State was free to comment on appellant’s later failure to testify? There are many times when counsel on either side make opening statements in criminal cases of facts which they expect to prove but later fail to follow up with substantiating proof. In by far the greater number of cases it is the prosecutors who offend, and in a considerable majority of them it is held not fatal to' the proceedings. ■ The test usually- applied is whether the statement is relevant and was made in good faith. 3 And the rule is the same on the defendant’s side. 4 Neither was it error for appellant’s counsel to say in their opening statement before the evidentiary issues were joined that he had testified at the former trial, or to refer to him afterward in argument as “this man sitting here today.” That did not signify he had not testified in the trial here involved. Under Sec. 4054, R. S. 1939, Mo. R. S. A. he could not have been tried “unless he.be personally present during the trial.” And that statute refers to defendants who have not testified as well as those who have. In this case appellant had been before the eyes of the jury throughout and they knew he had not testified. Nevertheless Sec. 4082 provided in effect that even though the jury knew that, still the fact could not be construed to affect his innocence or guilt, or to raise any presumption of guilt; .nor should it be referred to by any attorney in the case, or considered by the jury. The vice proscribed by the statute is comments by counsel accentuating the defendant’s failure to testify, whereby the jury are induced to consider his silence as pointing to his guilt because he has let the State’s evidence go unanswered. In this case prosecutor Duvall not only made a direct reference to appellant’s failure to testify, by saying the State thought the defense would put the appellant on the stand, but aggravated that by declaring if the defense had done so the State could have cross-examined him. Certainly that was not mere retaliation. With reference to the third ground urged by the State and recognized ■ in the principal opinion — that appellant’s counsel Dale in argument to the jury referred to appellant’s unsworn statement *609 at the police station, and argued it was true. We think it plain the making and introduction of that statement did not deprive appellant of the protection afforded by See. 4082, supra. The opening clause of the section is :■ ‘ ‘ If the accused shall not avail himself * # * of his * * * right to testify” (italics ours) — the safeguards therein shall apply. But by making the statement' appellant' did not testify although he introduced it in evidence after its execution was proven by the State. To “testify” the testimony must have been given under oath, as is held in many decisions froin various jurisdictions. 41 Words & Phrases (Perm. Ed.) p. 439, “Testify”; p. 441 “Testimony”. And since the written statement was not made under oath, in law it amounted to nothing more than any unsworn statement he might have made on the street. The principal opinion cites three groups of cases. The first group 5 embraces cases decided under Sec. 4082, supra, where the defendant had failed to testify. In every one of them the error was held reversible. The second group 6 includes cases decided under the same section where the argument violated it, but counsel was promptly rebuked by the court and retracted the remark and apologized. . In these the error was held cured. But in the Dodo case where that was not done the error was held reversible. A third group of cases cited are decisions in which there was intemperate and improper argument not involving See. 4082. As they are not in point we do not cite them here other than to say that one of them was the decision of this court on the former appeal of this case, 357 Mo. 115, 119 (1), 206 SW. (2d) 524, 526 (1-3). We think further that there was not a prompt and proper rebuke in this case such as would cure the improper remarks of Assistant Prosecutor Duvall. As heretofore pointed out, the court, instead of rebuking counsel before the jury and exacting a retraction, merely asked Mr. Duvall to keep within the record and the law; that counsel for the appellant should recognize counsel for the State has certain rights in answering arguments [of the defense]; and that the jury should “disregard the last few remarks of counsel for the State as to what the defense could have done [putting appellant on the stand] or as to what the State could have done in reference to” appellant’s written statement. . *610 This is not a criticism of the trial'court. We recognize the trial was attended with great difficulties because of the publicity given the crime, the scarcity of competent jurors, and the novel legal questions unexpectedly presented. But the case involves a human life [good or bad makes no difference], and that consideration must come first in passing on the appellate issues. Whatever is decided here will stand as a precedent and affect other parties in future cases. For the reasons stated we think the judgment should be reversed and the cause remanded for a new trial. Leedy and Tipton, JJ., concur. Fifth Amendment, Const. U.S.; Sec. 19, Art. 1, Const. Mo. 1945; Sec. 23, Art. II, Const. 1875; Sec. 9, Art. XIII, Const. 1821. 58 Am. Jur., p. 43 , § 36; 70 C. J., p. 733, § 888. 16 C. J. § 2226, p. 889-90; 23 C. J. S. § 1085, pp. 526-9; 53 Am. Jur. §§ 454-7, pp. 356-9; and numerous decisions in 9 West’s Mo. Dig. § 703, p. 341. 16 C. J. § 2227, p. 891; 23 C. J. S. § 1086, p. 531-3; 53 Am. Jur. §§ 454-7, pp. 356-9; 9 West’s Mo. Dig. § 704, p. 34. State v. Robinson (Mo. Div. 2) 184 SW. (2d) 1017 (1); State v. Conway, 348 Mo. 580, 585 (6), 154 SW. (2d) 128 ; State v. Mosier (Mo. Div. 2) 102 SW. (2d) 620 , 629 (14-20); State v. Shuls, 329 Mo. 245, 252 (7, 8), 44 SW. (2d) 94, 97 (8-10); State v. Watson, 1 SW. (2d) 837 , 840 (9, 10); State v. Drummins, 274 Mo. 632, 643-6 (4), 204 SW. 271, 275 (8); State v. Snyder, 182 Mo. 462, 523-5 (17), 82 SW. 12, 31 (10); State v. Moxley, 102 Mo. 374, 393 (13), 14 SW. 969, 974 (11, 10). State v. Dodo (Mo. App.) 253 SW. 75, 76(3); State v. Taylor, 134 Mo. 109, 157-8 (29), 35 SW. 92, 104 (11, 17); State v. Fitzgerald, 130 Mo. 407 . 436(15), 32 SW. 1113, 1121(16). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682023. Public record. Not legal advice.