¶1Tbe official term of tbe trial judge hav-. ing ended before tbe expiration of the time allowed for signing tbe bill of exceptions, tbe defendant has tbe right to establish it here upon sufficient proof of its correctness. — Code, § 622. The proof submitted upon tbe mo*26tion to establish the bill of exceptions without conflict shows it to be correct and the motion will, therefore, be granted.
¶2' The defendant and one Bill Coppin being indicted jointly, a severance of the trial was obtained.
¶3■ • The solicitor in his argument to the jury commented upon the fact that Coppin “had failed to take the stand and'deny his illicit intercourse with the defendant, or explain what he was doing out in the woods.” Upon objection'by defendant’s counsel to this comment, the court stated .that the argument was legitimate.
¶4There is a recognized rule of evidence which authorizes a presumption unfavorable to a party failing to produce a i witness having peculiar knowledge of facts from which 'the party claims a benefit and where the witness Is accessible to such party and not to his adversary.
¶5In Bates v. Morris, 101 Ala. 282, this rule was referred to; and it was added that “such presumption is, however, indulged with great caution and only when it is manifest the evidence is within the power of one party and is not accessible to his adversary.” In that case the question involved the bona fíeles as to creditors of Bates of a transfer of property by him to his wife, and it was held that the last rule stated was applicable, and that no unfavorable inference could be raised against the Avife from her failure to introduce her husband as a Avitness though he Avas present at the trial.
¶6While there has been diversity of opinion in courts of other States as to the right of the jury to consider the non-production of witnesses as a circumstance against the party to whom they are available, the decisions of this State appear Avithout conflict to sustain the rule as stated in Bates v. Morris, supra.—Patton v. Rambo, 20 Ala. 485; Jackson v. State, 77 Ala. 18; Carter v. Chambers, 79 Ala. 223; Pollak v. Harmon, 94 Ala. 420; Crawford v. State, 112 Ala. 1. The last quoted case denied the right of counsel to comment in argument upon the failure of the opposite party to examine a witness who Avas accessible to both parties.
¶7The authorities rest upon the consideration that there is in such cases no presumption that the testimony, if *27taken, would be more favorable to one party than to the other, and no room for conjecture as to what might have been shown by an examination.
¶8In the present case Coppin could not have been compelled to testily to any fact tending to criminate himself. The offense being one of which he and the defendant must'both have been either guilty or innocent, his mere refusal upon the ground of self-incrimination might have been construed by the jury to the defendant’s disadvantage. On the contrary, if he had not declined, the credibility of his testimony Avould have been open to assault upon the ground of interest.
¶9If in A-deAV of the fact that the scope alloAvecl to his examination Avould have depended largely upon Coppin’s own volition, the testimony could be deemed accessible to the defendant, yet it does not appear to have been less accessible to the State.
¶10Under the circumstances no presumption could arise that the testimony Avas Avithheld from sinister motives, and the jury should have been left to try the issue upon the evidence introduced.
¶11The proneness of the jury to consider a defendant’s failure to testify in his oavu behalf and the prejudice to the defendant Avliich Avould naturally result therefrom induced the legislative prohibition against any adverse comment in argument upon such failure.
¶12The statute does not cover this precise case, but the argument was improper under the general rule before stated; and in determining its effect, we are impressed with the consideration that the same results Avliich the statute intended to forestall Avhen the defendant is not examined, may folloAV as Avell Avhen the person not produced is one jointly implicated Avitli the defendant. The argument objected to Avas, therefore, forcibly cálculated to injure the defendant’s case, and. the error committed in its indulgence must Avork a Kwersal of the judgment.
¶13Some exceptions relating to the admission of testimony appear in the record. They could not affect the disposition to be here made of the case, and may not arise on another trial.
¶14The defendant avüI be held until legally discharged and the cause avüI be reversed and remanded to the circuit court.