CRIMINAL LAW: Violation of self-incrimination clause of constitution — instruction that failure of defendant to testify an inference of guilt. An instruction in a prosecution for larceny to the effect that the fact defendant refrains from testifying may be considered by the jury as an inference of his guilt, along with other evidence, constituted a violation of the self-incrimination clause of the constitution and is reversible error.
STUART, J.
Defendant appealed from the judgment on a jury verdict finding him guilty of the crime of larceny. He did not testify at the trial. The sole error alleged is the giving of Instruction No. 10, which states:
"You are instructed that the defendant in this case had the right under the law to testify as a witness in his own behalf, and he may also refrain from testifying. The fact that he does refrain from testifying may be considered by the jury as an inference of his guilt, along with other evidence, or the jury need not consider such failure to testify as an inference of guilt. However, such failure to testify by the defendant in his own behalf does not deprive him of the presumption of innocence."
The State concedes a reversal is necessary as this case is controlled by State v. Johnson, 257 Iowa 1052, 135 N.W.2d 518, in which we follow Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.2d 106. There, the majority of Supreme Court of the United States held a similar instruction violated the "Self Incrimination Clause of the Fifth Amendment * * * made applicable to the States by the Fourteenth".
This case is therefore reversed and remanded for new trial. — Reversed and remanded.
All JUSTICES concur.
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