392 F.2d 302 - United States v. Smith — 392 F.2d 302

How this case has been cited

Cited by 8 later decisions (1 by the Supreme Court) — most recently December 1980

5 federal appellate · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Claud N. Sapp, Columbia, S. C., for appellant.

¶2William B. Long, Jr., Asst. U. S. Atty. (John C. Williams, U. S. Atty., on brief), for appellee.

¶3Before BRYAN, WINTER and BUTZNER, Circuit Judges.

¶4PER CURIAM:

¶5On the trial of Durrell Gene “Skipper” Smith for robbery on May 5, 1967 of the Bank of Ridgeway, Ridgeway, South Carolina, 18 U.S.C. § 2113(a) and (d), his counsel asked the Court to charge the jury that “the fact that he [defendant] did not take the stand cannot be held against him.” Refusal of this instruction is one of the assignments of error in Smith’s appeal against his conviction. We think it is well taken, but we find no merit in the others.

¶6In lieu of this charge the Court thought it sufficient and more proper to tell the jury, and the jury was told with' clarity, that there was no burden upon the accused to offer evidence. Nevertheless, appellant contends that he was entitled to have the jury advised that an accused is not obligated to testify and that his failure to become a witness should not be used to his prejudice by the jury in determining his guilt or *303innocence. Defense counsel adds that, as several witnesses had appeared for the accused, the Court’s submission was conspicuously wanting in conveying to the jury his unquestionable privilege to refrain from giving-evidence in the case.

¶7No special formula or prescription of words is requisite, but when sought this right of the accused should be outlined to the jury. Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). Frequently, the explanation is made as of course. Unless seasonable objection by the defendant is interposed, this practice is quite correct; if opposed by him, it should not be given. To repeat, no pet phrasing is suggested; any words carrying a simple exposition of the precept will do. We have found no adequate substitute language here.

¶8For this omission the judgment now on review must be vacated and a new trial ordered.

¶9Reversed and new trial.