dissenting.
I am in respectful disagreement with my colleagues as to the remand of this record. If one fact was apparent in this homicide trial to all, and in particular to the jury, it was the fact that appellant did not testify. Whether comment is made or not on this fact, that fact is and was apparent to the jury. In short, our law prohibits such comments by the attorney general; however, counter-balancing of such error must under our law be obtained through immediate curative instructions by the court.
While I cannot condone nor pardon the attorney general for venturing either directly or indirectly into this forbidden territory, I cannot say that his error was prejudicial under the facts and circumstances •found in this record. There is a line of authority in this State that holds when an objection is made and sustained coupled with prompt instructions the error is cured. Hambrick v. State, 181 Tenn. 544, 181 S.W.2d 957 (1944); Williams v. State, 218 Tenn. 359, 403 S.W.2d 319 (1966); Huckaby v. State, 3 Tenn.Cr. 84, 457 S.W.2d 872, 875 (1970); French v. State, 489 S.W.2d 57, 60 (Tenn.Cr.App.1972); King v. State, 1 Tenn.Cr.App. 137, 430 S.W.2d 810 (1968); Buchanan v. State, 2 Tenn.Cr. 398, 454 S.W.2d 178, 182 (1970); Squires v. State, 525 S.W.2d 686, 694 (Tenn.Cr.App.1975); Tooley v. State, 1 Tenn.Cr. 652, 448 S.W.2d 683, 687 (1969). Or, more adroitly stated in Morrison v. State, 217 Tenn. 374, 390, 391, 400 S.W.2d 239 (1966):
. . We must conclude that the jury made up of citizens of high intelligence, fair minded men and women, and jurors who adhere to the rulings of the court, because the court has their respect, were told and knew that they use the court as a witness as to what the law is and more or less should and do take the law as given them by the court. The court is their witness as to what this is; they have respect for him and heed what he says. This being true, when these questionable questions are asked, objections sustained to them and the jury told not to consider them, this clearly is nonprejudicial and is no basis for a reversal.” (Emphasis added.)
There is a presumption of law that a jury does not disregard the court’s instructions not to consider inadmissible evidence. Howard v. State, 501 S.W.2d 573 (Tenn.Cr.App.1973), accord, Klaver v. State, 503 S.W.2d 946, 950 (Tenn.Cr.App.1973). In O’Brien v. State, 205 Tenn. 405, 418, 419, 326 S.W.2d 759, 765 (1959), the following may be found:
“. . . the court instructed the jury to disregard any question about anything which may have affected a jury in a former trial. As far as the record shows this ended the matter until the motion for new trial was filed. Wé think of course that we cannot assume that the jury considered the evidence to the prejudice of the plaintiff in error and we certainly cannot say that the jury disregarded the instruction of the trial judge. The fact of the matter is all presumptions are to the contrary." (Emphasis added.)
Conjunctive with the previous cited cases, there is another line of authority that holds despite curative instructions of the trial court, the reviewing court must weigh the complained of evidence in the context of the whole record. That if there is doubt as to its prejudicial impact, that doubt must be resolved in favor of the appellant. Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159 (1966), in accord, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Huffman v. State, 3 Tenn.Cr. 124, 458 S.W.2d 29 (1970). Further, this court has indicated that sustaining defendant’s objection and curative instructions may not always result in automatic cure; reasoning that additional steps, such as admonishing the prosecutor, may be necessary to remove prejudice. Judge v. State, 539 S.W.2d 340, 345, 346 (Tenn.Cr.App.1976). Accordingly, in this case the trial judge sustained defendant’s objection, issued immediate curative instructions, and admonished the prosecutor thus removing any resultant prejudice.
With the above in mind I note the majority has found the convicting evidence to be *120sufficient and with the jury not assessing the maximum punishment, I think the error was harmless.
A review of the United States Supreme Court decisions supporting the majority reversal: Griffin v. United States, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, supra; Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968) reveals that the comment on defendant’s failure to testify was sanctioned by the California State Constitution, as follows:
Art. I § 13: “In any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”
Due to the evident disparity of applicable law of California and Tennessee, the application of these cases to the instant ease is questionable. The above cited United States Supreme Court cases as well as Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968), reveal that, unlike here, the court charged the jury that inferences of guilt could be inferred from the failure of the defendant to testify coupled with the prosecutor’s reliance on such a charge resulting in a free-swinging argument filled with remarks concerning the inferences to be drawn when the defendant did not testify. The prejudice which resulted in those cases is a far cry from the innocuous comment of the attorney general here, and quickly cured by the trial court.
As stated in Anderson v. Nelson, supra, this error cannot be harmless when: (1) there are extensive comments of the failure to testify; (2) when guilt is stressed by that silence as a basis of conviction; and (3) where there is evidence that could have supported acquittal. There were not extensive comments here and no stressing of guilt by defendant’s silence and the majority has found the evidence of guilt to be sufficient.
I would, in conclusion, hold that the comment by the attorney general which prompted an objection with resulting curative instructions and reiteration of that instruction to the jury in its charge cured any error. In short, the error was harmless beyond a reasonable doubt. In other words, with reliance on the prompt instructions given by the court coupled with his charge of law not to draw any inference from the appellant’s failure to testify I have no hesitation in holding and believing under our system of law that the jury of fair-minded citizens sworn to give this appellant a fair trial accepted the rebuke of the Attorney General by the court and heeded the prompt instructions of the court. While I have expressed myself that the error was harmless beyond a reasonable doubt, I must also relate that I have qualms about this “reasonable doubt” rule of Chapman v. California, supra, in this record. First, the jury has found beyond a reasonable doubt that the appellant was guilty. The appellate court evaluates that in the light of whether the evidence preponderates against his guilt and in favor of his innocence. Second, in Chapman v. California, supra, with the Constitution of California permitting inferences to be charged and permitting the prosecutor to have a free-swinging argument on defendant’s failure to testify, I can understand why an appellate court before holding that type charge and argument harmless error must do so by expressing it was not prejudicial beyond a reasonable doubt. Third, our State Constitution contains no such provision, our trial court made no such type charge, the prosecutor made no such type argument. Fourth, with the court rebuking the prosecutor, promptly charging not to consider it to the jury with further instructions in his charge I have a serious doubt that I must, under those circumstances, use the “reasonable doubt rule” of Chapman, supra, to say the error was harmless; nevertheless, as stated, I am satisfied that the single comment was not prejudicial error. In passing, to hold as the majority would preempt curative instructions and every inadvertent or questionable statement of the prosecutor would be an automatic reversible error.
*121The other segment on the prosecutor’s argument about reasonable doubt (the court’s charge amply explained this necessary question of proof that the State must meet before they could return a verdict of guilty) and the portion of that argument concerning appellant’s brother walking the streets (there was evidence that his brother had been acquitted of killing his wife and appellant’s statement reflected that he felt his brother was guilty), not being objected to there is no error. Sherman v. State, 125 Tenn. 19, 47, 140 S.W. 209 (1911); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Casone v. State, 193 Tenn. 303, 246 S.W.2d 22 (1952); Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52, 55 (1962).
Lastly, the majority holds the court erred by excising portions of the hospital records, as follows: “due to attack”; “apparently beaten”; “badly beaten”; “voided involuntarily”. I find no error in the court excluding the “opinions” of witnesses who were not properly qualified. Covey v. State, 504 S.W.2d 387, 392 (Tenn.Cr.App.1973). Admittedly, the hospital record is admissible when offered as here by the qualified keeper conforming to the mandates of T.C.A. 24-714; however, admissibility of statements contained therein is not solely authenticated in this manner. Opinion, conclusion and other objectionable statements may properly be excised either in whole or in part as here according to other recognized rules of evidence. Graham v. State, 547 S.W.2d 531, 538 (Tenn.1977). There was, I think, no abuse of discretion by the trial court in excising the objectionable terms from those records.
I would affirm this conviction.