dissenting.
The direct evidence, as well as the circumstantial, points unerringly to the guilt of the accused. In fact, a fair consideration of the evidence leads to the inescapable conclusion that the accused is guilty. Counsel for the accused offered no evidence. The only evidence that we have is that offered by the Commonwealth and it abundantly sustains the conviction.
The Commonwealth’s Attorney in his closing argument to the jury commented upon the failure of the accused to testify. He pointed to the accused and said, “the defendant has not denied what Enoch Dodson said.” What Enoch Dodson had said implicated the accused in the crime.
Counsel for the accused seasonably objected to this argument and asked for a mistrial but the court refused to declare a mistrial. However, the court immediately orally instructed the jury that the defendant was not required to take the stand, nor to introduce any evidence, and that the defendant’s failure to take the stand could not be taken against him or held to prejudice his case. The trial then proceeded.
The majority are of opinion that the court committed reversible error in failing to declare a mistrial on account of the illegal argument of the Commonwealth’s' Attorney. The objectionable argument clearly violated Code, §4778. We have quite recently considered this statute in Powell v. *603Commonwealth, 167 Va. 558, 189 S. E. 433, 110 A. L. R. 90, and Blair v. Commonwealth, 166 Va. 715, 185 S. E. 900.
Are we compelled by the statute (§4778) to reverse the judgment of the trial court in this case when we are convinced that the accused is guilty? I think not.
Code, §4778 must be read in connection with §6331. The latter section provides in part that: “No judgment * * * shall be reversed * * * for any error committed on the trial where it plainly appears from the record and the evidence * * * that the parties have had a fair trial on the merits and substantial justice has been reached * * * .”
It has been said of our liberalizing statutes, and especially of §6331, that they are based upon a sound public policy and are supported by the unanswerable logic of the progressive exponents of the best legal thought, with which this court has been in full' accord. Standard Paint Company v. E. K. Vietor & Company, 120 Va. 595, 91 S. E. 752.
We have often said that §6331 was intended to be a very substantial change in the statute of jeofails; that it was intended to render it practically impossible for a case to be reversed on any mere technicality, and to allow all judgments to stand when fairly rendered on the merits, if substantial justice has been reached. The section applies to criminal as well as civil cases. Smith v. Commonwealth, 168 Va. 703, 190 S. E. 91.
Again in Virginia Railway & Power Company v. Smith, 129 Va. 269, 105 S. E. 532, 535, we said that it is our purpose to vitalize the provisions of §6331 in its application and administration. In that case this language was used: “Of course, there will always be room for doubt as to whether the right result has been reached when the evidence has been in serious conflict; but in causes triable and tried by juries ‘substantial justice’ in a legal sense has been attained when litigants have had one fair trial on the merits; * *
I am of the opinion that the violation of the statute (§4778) by the Commonwealth’s Attorney would constitute prejudicial and reversible error in a doubtful case, but in a case where all of the evidence clearly points to the guilt of *604the accused, and no prejudicial error is shown by the verdict or otherwise, and where it is not probable that any other verdict than one of guilt could be sustained, the error would be harmless and not sufficient for a reversal of the judgment.
In the case at bar the accused was not prejudiced by the remarks of the Commonwealth’s Attorney. The .court promptly told the jury to disregard them. Substantial justice has been reached upon the merits of the case and it should be affirmed.
This conclusion is not only consistent with our purpose to sustain judgments fairly rendered upon the merits where substantial justice has been done but it is supported by the weight of authority in other jurisdictions.
In an annotation in 84 A. L. R. at page 95, the majority rule is stated thus: “The weight of authority seems to be that comments of the prosecuting attorney on the failure of the defendant to testify in a criminal case, though highly improper, may under some circumstances work no injury, where the trial judge promptly intervenes, excluding the comments and admonishing the jury to disregard them. In other words, comments of that kind stand on very much the same footing as other improper arguments, and whether they call for a reversal or not depends on whether, after a full consideration of all the circumstances, including the action of the trial judge at the time they were made, the appellate court is of opinion that no prejudice resulted.”
Again in the same annotation at page 791, this pertinent language is used and to support it a host of cases is cited: “Misconduct of a prosecuting attorney in commenting on the failure of the defendant to testify does not result in a miscarriage of justice warranting a reversal, when the evidence of the defendant’s guilt is clearly established.”
See also, 3 American Jurisprudence, Appeal & Error, §1079.
Prom my review of the cases which have been reversed by this court because of a violation of §4778 I have found that they are cases involving some doubt of the guilt of the *605accused. I have been unable to find a Virginia case in which there has been a reversal where all of the evidence introduced clearly disclosed that the accused was guilty. In Price v. Commonwealth, 77 Va. 393, we refused to reverse the judgment for this reason where the objection was not raised until after the verdict was rendered and it was clearly demonstrated that the accused was guilty, and, therefore, was not prejudiced by the comment.
In the opinion of the majority this case is controlled by the case of Blair v. Commonwealth, supra, and the statement is made that in the Blair Case there was no doubt of the guilt of the accused. With that statement I am unable to agree. There the accused was indicted, tried and convicted of attempted rape and given life imprisonment. At the time the offense was committed Blair was intoxicated from the use of a certain kind of cigarette. This was not only shown by the evidence but conceded by the Attorney General. In addition to that fact, there was serious doubt as to the existence of the elements of the offense. In the majority opinion quotations were taken from the Blair Case but this significant language found there was not referred to: “The prosecutrix was returning to her home when she was attacked, she having been to a store where she purchased some eggs. She testified that the accused did not strike her; that he did not attempt to pull up her dress, nor to put his hands upon her limbs or on any other part or parts of her body other than her neck. She further testified that he made no indecent proposals or advances to her and that the only thing he did was to choke her.” (Blair v. Commonwealth, 166 Va. 715, 717, 185 S. E. 900, 901.)
From the. evidence in that case there was considerable uncertainty as to whether the accused was guilty of attempted rape. He was unquestionably guilty of an assault.
Another significant distinction is that in the Blair Case the court permitted the accused to involuntarily take the stand and required him to testify without advising him of his constitutional right to remain silent. In the present case the court very promptly instructed the jury that they were *606not to consider the objectionable remark of the attorney for the Commonwealth and this cured the error.
In Roller v. Commonwealth, 161 Va. 1104, 172 S. E. 242, 244, the objectionable language of the attorney for the Commonwealth was: “Why didn’t he have that good wife of his here to testify as to where he was * * * .” In that case the evidence of guilt was highly conflicting and on that account the judgment was reversed, but we left open the decision of the question where all the evidence points to guilt. We said: “Under the evidence in this case, which, as we have seen, was highly conflicting, and upon which the jury could reasonably have found the accused guilty or not guilty, we will not say that the comments of the assistant prosecutor were not prejudicial to the accused. This is not a case in which the doctrine of harmless error should be applied. We will not presume that the comments were harmless. The plain language of the statute referred to creates an express inhibition and its violation by any prosecuting attorney is a violation of one of the fundamental principles of criminal jurisprudence in this jurisdiction. However, we withhold any decision of the question upon a case where such comment is made and where the evidence points clearly to the guilt of an accused and is substantially free from conflict. In other words, whether in such latter case the accused must show that he was prejudiced by the comments of the prosecuting attorney, we do not decide.”
An illustration of the liberality of this court in the application of the doctrine of harmless error in criminal cases is found in the case of Sullivan v. Commonwealth, 157 Va. 867, 161 S. E. 297, 301. There the accused was tried and convicted of an offense for which he had not been indicted. He had been indicted for an entirely different offense and one which imposed a different punishment; yet Justice Campbell (now Chief Justice) speaking for the court said: “The case, then, is one which calls for the application of Code, section 6331, which forbids this court to reverse any judgment ‘for any error committed on the trial, where it plainly appears from the record and the evidence given at the trial that the *607parties have had a fair trial on the merits and substantial justice has been reached.’ Walker v. Commonwealth, 144 Va. (648), 651, 131 S. E. 230.”
For many years this court has liberally applied the doctrine of harmless error. The opinion of the majority is in effect a backward step. We have no more right to ignore Code, §6331 than we have to ignore Code, §4778. I do not think we should ignore either, but under elementary principles of statutory construction, both sections should be read and construed together.