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246 S.W.2d 456

Ledford v. Commonwealth

Court of Appeals of Kentucky

Decided February 15, 1952

Court of Appeals of Kentucky · decided 1952-02-15

Relies on Davis v. Commonwealth · Canada v. Commonwealth · Barnett v. Commonwealth

Decided 1952-02-15

CAMMACK, Chief Justice.

¶1Dam -Ledford Was sentenced to five years in prison on a charge of storehouse breaking. We are asked to reverse the judgment on the grounds that (1) the trial judge made a prejudicial statement about the affidavit as to the testimony of three witnesses which was read to prevent a continuance of the case; and (2) it was improper for the Commonwealth’s Attorney to comment on the failure of a codefend-ant to testify.

¶2At the conclusion of the reading of the affidavit the trial judge told the jury: “Gentlemen of the jury, the evidence read here is what is supposed to be the evidence of Dan Bush, Paul Cole and James (Blue) Herald.”

¶3When counsel for Ledford moved to set aside the swearing of the jury the judge immediately corrected his statement by saying: “This is the evidence of the witnesses.” The motion to set aside the swearing ctf the jury was overruled.

¶4In Barnett v. Commonwealth, 225 Ky. 585, 9 S.W.2d 715, it is pointed *457out that it is improper for a prosecuting attorney to make a statement discrediting an affidavit stating what an absent witness would say, when read as a deposition to avoid a continuance. Obviously, the same rule would apply to a statement of a trial judge. Objection is directed to the use of the word “supposed” by the trial judge in his first statement about the affidavit. The judge corrected this statement immediately by telling the jury that the affidavit was the evidence of the absent witnesses. Under the circumstances, we do not believe the substantial rights of Led-ford were prejudiced.

¶5It is provided in KRS 455.090 that the failure of a defendant to testify in his own behalf shall not be commented upon. This rule does not prohibit the Commonwealth’s Attorney from commenting upon the failure olf a codefendant to testify. See Davis v. Commonwealth, 191 Ky. 242, 229 S.W. 1029; Canada v. Commonwealth, 262 Ky. 177, 89 S.W.2d 880.

¶6Judgment affirmed.

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