The People v. Berkowitz , 369 Ill. 197 ( 1938 )

In this case, the majority opinion holds that it is not sufficiently prejudicial to work a reversal for the judge to leave the court room during the trial and for the State's attorney to comment on the fact that the defendant did not testify in his own behalf. Our holding that it was prejudicial error for the judge to leave the court room during the trial, inPeople v. Chrfrikas, 295 Ill. 222, is pointed out but not followed in the majority opinion. It is admitted that in his remarks in the absence of the trial judge, the State's attorney obviously referred to the defendant although the latter was not mentioned by name. Objection was sustained to these remarks and the ground of the objection was that it is improper to comment on the failure of a defendant to testify in his own behalf in a criminal case. This rule is based on the constitutional provision that a defendant shall not be required to give evidence against himself. Testimony as to admissions against interest made before the trial and where there was a duty to speak is competent testimony but we have held repeatedly that no such duty exists during the trial of a case. Neither People v. Birger, 329 Ill. 352, nor People v. Carmen, 367 id. 326, has any application to the point before us. The one had to do with comment that certain facts had been proved and had not been denied or contradicted, and the other involved a statement by the Appellate Court in its decision that the defendant had not testified.

Both errors were prejudicial. Either was enough to demand a new trial. The fact that punishment was fixed by the court and not the jury demanded that the trial judge be present and did not remove the evil effect of comment on the defendant's failure to testify.

Mr. JUSTICE JONES, also dissenting.