(dissenting).
I am of the opinion that the prejudice created by the improper remark of government counsel was cured by the instructions given the jury.
Even in cases of first degree murder, error has been held cured by proper instructions. See Medley v. United States, App.D.C., 155 F.2d 857, certiorari denied 66 S.Ct. 1377; Jackson v. United States, 62 App.D.C. 250, 66 F.2d 280, certiorari denied 290 U.S. 626, 54 S.Ct. 73, 78 L.Ed. 545; Copeland v. United States, 55 App.D.C. 106, 2 F.2d 637, certiorari denied 266 U.S. 629, 45 S.Ct. 128, 69 L.Ed. 476. That an improper reference to the failure of an accused to take the stand is not necessarily fatal and may be cured has been held in many federal cases. E. g., Cross v. United States, 5 Cir., 68 F.2d 366; United States v. Di Carlo, 2 Cir., 64 F.2d 15; Robilio v. United States, 6 Cir., 291 F. 975, certiorari denied 263 U.S. 716, 44 S.Ct. 137, 68 L.Ed. 522; Lanier v. United States, 5 Cir., 276 F. 699; Wright v. United States, 5 Cir., 108 F. 805, certiorari denied 181 U.S. 620, 21 S.Ct. 924, 45 L.Ed. 1031. Cf. Milton v. United States, 71 App.D.C. 394, 110 F.2d 556.
In the present case the statement of government counsel was not made in argument to the jury nor was the statement directly addressed to the jury. It was made as a *342part of the government’s contention that defendant’s counsel should make the opening argument to the jury. It did not consist of hostile comment on defendant’s failure to testify. Evidently the trial judge, who was better able to appraise the situation than we are, did not feel that there was a deliberate attempt to direct the attention of the jury to defendant’s failure to take the stand. Under these circumstances I am of the opinion that the error was cured by the judge’s explicit direction to the jury that defendant’s failure to testify should not be taken against him. While it would have been better practice for the trial court to have told the jury immediately after the statement wás made that it was improper and not to be considered by them, the charge to the jury came within a fairly brief time after the statement was made, and I think it effectively served its purpose. It ought not to be assumed that the jury disregarded the express instructions and admonitions of the trial judge.
The evidence of defendant’s guilt was convincing and uncontradicted; and I think the majority goes too far in holding that the remark of the government counsel, despite the judge’s charge, prevented the jury from rendering a fair and impartial verdict.