Criminal law — Failure of accused to testify — Comment by prosecuting attorney and charge to jury thereon — Violation of constitutional rights.
Per Curiam.
At the trial the state commented to the jury that the defendant failed to testify at the preliminary hearing. The court charged the jury that, by constitutional and statutory provisions, failure of accused to testify at his trial may be considered by the court and jury and may be the subject of comment by counsel, but that a preliminary hearing before a county judge is not a trial and "the fact that defendant did not testify at that hearing is not proper to be made the subject of comment by counsel in this trial and you are instructed to disregard that entirely, the preliminary hearing." In our opinion, this charge could not correct the error in the aforementioned conduct of the state.
The motion for leave to appeal is allowed. The judgment of the Court of Appeals is reversed on authority of Griffin v. California, 380 U.S. 609, and O'Connor v. Ohio, 17 L. Ed. 2d 189, and the cause is remanded to the trial court for a new trial.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.