v. Bertrand, L. R. 1 P. C., 520; 29 Encyc. of Law, p. 680, et seq.; Wilson v. United States, 149 U. S., 60; Long v. State of Indiana, 26 Am. Repts., 19; Angelo v. People, 36 Am. Repts., 132. In this case there was no attempt to cure the error. Commonwealth v. Harlaw, 110 Mass., 411; Commonwealth v. Scott, 123 Mass., 240; Commonwealth v. Worcester, 141 Mass., 58.

J. W. Longley, Attorney-General, contra.-This is not an appeal. The American authorities cited are of course not binding here. The act is directory only, and not imperative.

A. Drysdale, Q.C., in reply. The statute is imperative on its face. Hardcastle on Statutes, 73. There can be no new trial here. There can only be a new trial in the case of appeal. Before the Code there was no new trial for felony. J. W. Longley, Attorney-General, replied on the point as to new trial.

HALIFAX, January 11, 1898.

GRAHAM, E. J.

Under the Statutes of Canada, 1893, c. 31, s. 4 (d), which enables defendants, and the husbands and wives of defendants to testify in criminal cases, there is this provision :—

"The failure of the person charged, or of the wife, or of the husband of such person to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution in addressing the jury.”

In this case it appears that the prosecuting counsel violated this provision (no doubt inadvertently), by referring to the failure of the party to produce his wife as a witness.

Apparently, it was not noticed by the presiding judge, and, therefore, was not prevented, or further reference made to it. The prisoner's counsel, after the jury retired to consider their verdict, first called the attention of the judge to it. Counsel for the defendant called our attention to the American decisions, and he broadly contended (although it was not necessary for the decision of the case), that under our statute, if reference is made by counsel to the failure to testify, it cannot be cured by the interference of the judge, no matter

how prompt, nor by his directions to the jury to disregard the observation; that the result must always be a new trial. In the United States, however, there is great variety in the statutes, and some variety in the decisions. I cannot find that there is a sharp line drawn between cases in which the statute prohibits comment, and those in which the provision is that the neglect to testify shall not create any presumption against him. I find, moreover, that the statutes in some of the States where this doctrine has been held differ from ours.

Thus in Iowa the statute runs :-And should he do so, (refer to the default to testify) such attorney will be guilty of a misdemeanor, "and the defendant for that cause alone be entitled to a new trial." 3 Greenleaf on Evidence, 57.

Of course, a violation of that statute could hardly be cured; there must be a new trial.

In Indiana, Long v. State, 26 Am. R., 19, the statute

was:

Fourth. The defendant, to testify in his own behalf, but if the defendant do not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same, etc.

The court checked the attorney in his remarks, and instructed the jury to pay no attention to what was said. But the court of appeal held that the statute required silence on the subject, and ordered a new trial.

The same course was pursued in Illinois in Angelo v. People, 36 Am. R., 132, where the language of the code is:

"His neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect."

But in Watt v. People, 126 Ill., 31, (see 29 Am. Ency., 686), it was said :

"But it does not necessarily follow that every reference to the law on that subject is prohibited. The true test would seem to be, was the reference intended or calculated to direct

the attention of the jury to the defendant's neglect to avail himself of his legal right to testify."

In Bradshaw v. People, 153 Ill., 156, the attorney for the prosecution in an abduction case remarked that the enticing and taking away of the prosecuting witness was not denied by the defendant. The court promptly rebuked him, saying in the presence of the jury, that the defendant, by his plea of not guilty, had denied everything. It was held that the language of the attorney was not such a comment on the defendant's silence as would vitiate the verdict.

And in Wilson v. United States, 149 U. S.,'66, under that same Illinois code, Field, J., said :

"The refusal of the court to condemn the reference of the district attorney, and to prohibit any subsequent reference, to the failure of the defendant to appear as a witness, tended to his prejudice before the jury, and this effect should be corrected by setting the verdict aside and awarding a new trial."

And he cites from Austin v. People, 102 Illinois, 264 :

"We do not see how this statute can be completely enforced, unless it be adopted as a rule of practice, that such improper and forbidden reference by counsel for the prosecutor shall be regarded as good ground for a new trial, in all cases when the proof of guilt is not so clear and conclusive that the courts can say affirmatively the accused could not have been harmed from that cause.'

"the

In Massachusetts, where the statute merely is neglect or refusal to testify shall not create any presumption against them," the Supreme Court, in Commonwealth v. Worcester, 141 Mass., 61, said :

"The court was not required, as a matter of law, to take the case from the jury because the district attorney, in closing for the government, commented upon the fact that the defendant did not testify as a witness. If any objectionable comments of this character were made the defendant's remedy was to object to them at the time, and to ask the judge to instruct the jury that they should not be considered by them

to his prejudice. The judge was not required to treat the whole trial as a nullity by taking the case from the jury."

In Ohio, the statute is :

"Nor shall the neglect, or refusal to testify create any presumption against him, nor shall any reference be made to, nor any comment upon such neglect or refusal."

In Calkin v. State, 98 Am. Dec., 125, prosecuting counsel, in closing, was interrupted by the defendant. Counsel turned to him and said to him in the hearing of the jury; "Mr. Calkin, you had an opportunity to testify in this case and did not do so." The court said :—

"We suppose a case might occur in which the misconduct of counsel for the state, in disregarding the prohibition of the statute above quoted, and of the court in permitting such disregard, or in failing promptly to rebuke and to arrest it, by the exercise of all its authority and power necessary for that purpose, would require the court in the exercise of a just discretion, and out of due regard to the rights of the prisoner, to award a new trial. But in this case the prisoner seems to have provoked the single hasty retort of counsel, and the court does not appear to have been in any way wanting in duty."

In Minnesota, the statute provides that the neglect to testify shall not "be alluded to or commented upon by the prosecuting attorney or by the court." But in State v. Ahern, 1893, 54 Minn. 195, it was held :—

"When the evidence of the defendant's gilt is so overwhelming that the court is able to say affirmatively that the jury could have not returned a verdict in his favor without a wilful disregard of their duty, unwarranted remarks of counsel which might otherwise be fatal to the verdict may be deemed harmless error."

I refer to those decisions because the learned AttorneyGeneral contended that, according to English law, there is no reason for holding that a reference by counsel to the fact that the party had not testified, must inevitably, in every case, result in a mis-trial, and that American cases to the contrary must be disregarded; that under English decisions

there may be many violations of law, such as the erroneous reception of testimony, which the judge may cure at the close of the case by telling the jury to disregard it, and he may cure his own misdirection in an earlier part of the summing up; and that, in the United States, new trials are granted in civil cases for the improper comments of counsel when they would not be in England; and this idea has been taken over in administering this statute.

I think there is much force in these observations.

Of course, just now when juries are not well aware of the existence of the privilege the defendant has of testifying, it is a great advantage to him that silence should be observed. But, by and by, when it becomes as well known in criminal cases as it is now in civil cases, that a defendant may testify, and the jury will always know it, then a mere reference to the failure of the defendant to testify will hardly prejudice the defendant. And there can be no more than a reference to it, if the judge, as he surely would do, promptly interferes, and stops the comment of counsel, and tells the jury to disregard it.

It is "comment on the failure to testify which the statute intends to prohibit; showing the various matters (as counsel do in civil cases, when a party does not go on the stand), which could have been cleared up by his testimony, the various inferences against his case, and statements of other witnesses, that he could have contradicted. There is always great force in such comments.

It is not necessary, however, to determine what the proper construction of this statute is on this particular point; whether the result of a reference by counsel to the failure to testify, must always be a new trial, or whether it is not a matter that may be checked and cured by the judge. I reserve my opinion upon it.

In this case, it is reported that there was unfavorable comment which was not checked or cured.

Under some of the American decisions referred to, the counsel for the defendant should have raised his objection at the time. But under Regina v. Bertrand, L. R., 1 P. C.,