(concurring). While I concur with the views of the presiding judge in holding that the trial court did not properly exercise its discretion in denying a new trial, in view of the irregularities of the special counsel on the part of the state and in the proceedings occurring at the trial, I am inclined to the opinion that the defendant is entitled to a new trial on the ground that the special counsel in his argument to the jury called their attention to the fact that the defendant had not been called as a witness in her own behalf on several occasions during his concluding argument. It is true that counsel did not in terms state to the jury that the defendant had not been called as a witness, but he so plainly indicated to them that such was the fact that the jury could not have misunderstood that their attention was called to this fact, as we must presume that the jury was composed of intelligent persons who could readily understand the -full import of the language used by the counsel when referring to the failure of the defendant’s counsel to disprove the testimony offered on the part of the state, when it was in his power to have disproved it by the defendant’s own testimony.
In State v. Bennett, 21 S. D. 396, 113 N. W. 78, this court very fully considered the question as to the effect of counsel calling attention, in the presence of the jury, to the fact that the defendant had not been called as a witness in his own behalf, and quoted quite fully from the opinion of Mr. Justice Field, delivering the opinion of the Supreme Court in the case of Wilson v. United States, 149 U. S. 60, 13 Sup. Ct. 765, 37 L. Ed. 650, in which that *451learned court said .that: “To prevent such presumption being created, comment, especially hostile '. comment, upon such failure must necessarily be excluded from the jury. The minds of the jurors can. only remain unaffected from this circumstance by excluding all reference to it.” In that case it will appear from the decision that the judgment of conviction was reversed and the case remanded with directions to award a new trial. And this court quotes with approval the following from the learned Supreme Court of Iowa: “If reference can be made to the fact that the defendant has not testified in his own behalf in arguments to the court, then such a reference may be made in every case, and thereby the statute will be nullified.” Following, .therefore, the decisions of this court in the case of State v. Williams, 11 S. D. 64, 75 N. W. 815; State v. Garrington, 11 S. D. 178, 76 N. W. 326; and the case of State v. Bennett, supra, the defendant is clearly entitled to a new trial for the persistent statements of the special counsel in calling the attention of the jury, indirectly it is true, but none the less effectively, to the fact that the defendant had not been called as a witness to testify in her own behalf.
The order'appealed -from is reversed, and a new trial ordered.