Wilson v. United States (149 U.S. 60)

Statement by Mr. Justice FIELD:

The defendant below, George E. Wilson, the plaintiff in error here, is a bookseller and publisher, carrying on his business in Chicago, Ill. He was indicted in the United States district court for the northern district of that state for a violation of section 2 of the act of congress of September 26, 1888, (25 St. p. 496,) amending section 3893 of the Revised Statutes, relating to the use of the mails to give information where and by what means obscene and lewd publications might be obtained, and was convicted and sentenced to imprisonment in the penitentiary of the state for two years. To reverse that judgment, he has brought this case to this court on writ of error.

The indictment charged, in different counts, that the defendant, by himself and another person, had deposited in the mail at Chicago, for delivery to John Hobart, at O'Fallon, Ill., and Jack Horner, at Collinsville, Ill., a letter and circular giving information where certain designated lewd and obscene books could be obtained. No attempt was made to show that

[Statement of Case from pages 61-62 intentionally omitted] the letter and circular was mailed by the defendant in person, but an attempt was made to show that some other person had done the act at the instigation or request of the defendant, and that he was responsible for it. The defendant did not request to be a witness or offer himself as such, and the district attorney of the United States, in summing up the case to the jury, commented upon the fact that he had not appeared on the stand, as follows:

'They say Wilson is a man of good character. It is a grand thing for a young man in Chicago to be the son of an honest man, because blood will tell. If the father is honest, the chances are the son will be honest too. Men live all their lives to build up a good character, because it is a shield against the attack of infamy. They called two or three witnesses here who testified to this young man's character as being good, so far as they know; but I want to say to you, gentlement of the jury, that, if I am ever charged with a crime, I will not stop by putting witnesses on the stand to testify to my good character, but I will go upon the stand, and hold up my hand before high heaven, and testify to my innocence of the crime.'

To this language of the district attorney the counsel for the defendant excepted, and called the court's attention to it, and the court said: 'Yes, I suppose the counsel should not comment upon the defendant not taking the stand. While the United States court is not governed by the state's statutes, I do not know that it ought to be the subject of comments by counsel,'-to which the district attorney replied as follows: 'I did not mean to refer to it in that light, and I do not intend to refer in a single word to the fact that he did not testify in his own behalf,'-to which the counsel for the defendant thereupon excepted.

The act of congress of March 16, 1878, (20 St. p. 30, c. 37,) provides 'that in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, territorial courts, and courtsmartial, and courts of inquiry, in any state or territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him.'

The objections of the defendant's counsel to the language of the district attorney in his argument to the jury in referring to the defendant's failure to appear on the stand as a witness, and testify to his innocence of the charge against him, and to the neglect of the court to forbid and condemn such reference, were embodied in a bill of exceptions, and constitute one of the grounds urged for a reversal of the judgment and the award of a new trial.

C. Stuart Beattie, for plaintiff in error.

Asst. Atty. Gen. Parker, for defendant in error.

[Argument of Counsel from pages 63-65 intentionally omitted]

Mr. Justice FIELD, after stating the facts in the foregoing language, delivered the opinion of the court.