William O. Douglas

“ Though the prosecutor's comment on the accused's failure to testify was again adverted to, it was in a different connection. Counsel for petitioner contended that the prosecutor's statement that the claim of privilege amounted to an admission of income tax violation in 1938 was 'an entire misconception of * * * the claim of privilege' inasmuch as the basis of the claim 'is that the testimony * * * would have a tendency to incriminate him', and 'not that it would prove him guilty'. The court indicated that this objection was well taken and should be called to the attention of the jury. ”

“ We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him. ”

“ In view of all that took place at the trial, to have denied the jury an opportunity to consider the significance of the defendant's desire not to testify regarding gambling receipts in 1938 would have been to withhold from them a factor relevant in determining whether Johnson's explanation of what he did with the 'protection' money received by him in 1936 and 1937 was the truth or just a cock-and-bull story. ”

“ It is for me to point that out to you.
'Now, ladies and gentlemen, can you believe that man told you the truth about anything on the witness stand when he admits that he got numbers money in 1938 but won't tell you who he got it from on the ground it would incriminate him? ”

“ The evidence was that one Weloff and one Towhey acting alternately delivered to petitioner on behalf of the numbers syndicate $1,200 a week from July 1935 to November 1937. About November 1, 1937, Weloff and Towhey were displaced by one Jack Southern to whom the syndicate delivered $1,200 a week. Neither the prosecution nor the defense would sponsor Southern's testimony. At the request of the prosecution the court called Southern as a witness. ”