Page:Williams v. State, 259 Ark. 667, 535 S.W.2d 843 (1976).pdf/7

] 467, 220 N.E. 2d 432 (1966); People v. Di Manno, 15 Misc. 644, 182 N.Y.S. 2d 937 (1959). It alone puts in issue the truth and credibility of all of the evidence offered against an accused. State v. Lackey, 251 N.C. 686, 111 S.W. 2d 891 (1960); State v. Hardy, supra.

In spite of this, the deputy prosecuting attorney in opening the arguments to the jury stated, "To me it is just a pure and simple matter of a man lying who has been convicted, is now in the penitentiary, and is coming up here and lying to the Court, and he is lying to the jury to get himself out of a pickle." Prompt and proper objection was made and overruled. The last clause certainly reminded the jury immediately that appellant had not testified. Even though this, in and of itself, may not have constituted reversible error, had it not, at the same time, carried the clear implication that, by remaining silent, as he had a constitutional right to do, and by not offering any evidence, his plea of not guilty, which he had a clear right to enter even if he had no doubt in his own mind about his guilt, constituted lying to the jury, rather than just relying on the presumption of his innocence and putting the burden on the state to prove his guilt beyond a reasonable doubt. This, of course, was a misstatement, even though we are confident that, instead of being intentional, it resulted from the prosecutor's zeal and the natural indignation that he would feel when convinced that wholly unwarranted and baseless charges had been made against the presiding judge of the court.

The statement constituted error beyond doubt. Closing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom. Simmons v. State, 233 Ark. 616, 346 S.W. 2d 197. Whenever trial counsel argues matter that is beyond the record and states facts or makes assertions not supported by any evidence that are prejudicial to the opposite party, there is clearly error. Walker v. State, 138 Ark. 517, 212 S.W. 319; McElroy v. State, 106 Ark. 131, 152 S.W. 1019; Willyard v. State, 72 Ark. 138, 78 S.W. 765; Fakes v. State, 112 Ark. 589, 166 S.W. 963.

When objection is made, the presiding judge should ap-