dissenting.
I respectfully dissent. As our supreme court has said on numerous occasions, we must assume that jurors are possessed of normal intelligence. Consequently, those veniremen that were ultimately selected to hear the case obviously knew that a person, in this case the defendant, had the right not to testify. This because they had been informed by the prosecutor, with the court’s tacit approval, on the voir dire examination that such was the case. While it is true that the prosecutor did not say defendant in so many words, yet, he did say “person,” and defendant was the only person then being tried. Moreover, I reject the notion of the majority that the statement in question made by the prosecutor gained in respectability simply because (1) it was made preliminary to the trial proper; or (2) that it was simply a general statement of the law concerning an accused’s Fifth Amendment right.
Additionally, I find that the majority’s reliance upon State v. Turnbough, 498 S.W.2d 567, 570[1] (Mo.1973) is not only misplaced but also is an abortive attempt to find a waiver, contrary to what was decided in State v. Brown, 547 S.W.2d 797, 805 (Mo. banc 1976). In fact, the court’s reliance upon Turnbough is in direct conflict with the holding in the Brown case.
For the reasons given above, I would reverse the judgment and remand the cause for a new trial.