Opinion
No. 22199.
October 18, 1965.
Edward R. Kirkland, Orlando, Fla., for appellant.
Edward F. Boardman, U.S. Atty., Tampa, Fla., for appellee.
Before JONES and BELL, Circuit Judges, and JOHNSON, District Judge.
The appellant was convicted for violation of the statute on bail jumping. 18 U.S.C.A. § 3146. Two questions are presented on appeal: whether the motion for judgment of acquittal should be granted and whether the appellant was prejudiced by comments of the prosecuting attorney in his address to the jury. It is enough to say with respect to the first question that the evidence presented a jury issue, and it was not error to deny the motion for judgment of acquittal. In his statement to the jury, counsel for the Government said that the defendant, who is the appellant here, "has yet to say where he was — where he had gone, insofar as the record is concerned — it is silent." This statement is clearly a comment upon the failure of the appellant to testify as a defendant in a criminal cause. It is clearly prejudicial. Fowler v. United States, 5 Cir., 310 F.2d 66. The judgment of conviction and sentence must be reversed and remanded for a new trial.
Reversed and remanded.