I concur. The assignment that the remark of the county attorney to the jury stating, "the act of intercourse was not disputed by anyone," was misconduct, is not to my mind satisfactorily answered on the grounds stated in the prevailing opinion. However, the argument of counsel was not reported and does not appear in the transcript. We cannot tell what the circumstances were under which the remark was made, or what was said before or after the statement from which its purport and effect might be determined. Since the trial court, hearing the whole argument, overruled the objection to the remark, we must conclude that the setting in which the remark was made, was such as not to justify the inference that it was directed to defendant's failure to take the witness stand.
MOFFAT, J., concurs in the result. *Page 138