Upon petition for rehearing.
BeoNSON, J.In a petition for rehearing defendant complains of the facts as stated in the opinion that they are misleading when considered in connection with the whole statement of the facts. No attempt was made in the opinion to state all the facts. Those facts, favorable to the state, are stated which, presumably, from the verdict of the jury, were found to be true.
In the briefs, as well as in the petition for rehearing, defendant h asset forth, at considerable length, language used by the state’s attorney in his argument to the jury. There is just one assignment that covers language that is preserved by a record thereof. This court has not otherwise considered such language, as a basis for determination of misconduct, for the reason that defendant has not presented a record which shows that the state’s attorney did use such language. The necessity and the method of settling a record in cases of error predicated upon misconduct of counsel has been fully outlined in Erickson v. Wiper, 33 N. D. 193, 222, 157 N. W. 592. The petition for rehearing is denied.
Birdzell, Ch. I., and OhristiaNSON, RobiNSON, and Grace, JJ., concur.