dissenting.
I respectfully dissent from the majority opinion in this case. The majority is correct in stating that the instruction tendered by the appellant was a correct statement of the law. The majority also is correct in stating that the instructions given by the court, taken by themselves, did not adequately cover the right of appellant to refuse to testify.
However, the majority ignores the factual situation that developed in this case. Although the trial court had refused appellant's instruction, the prosecutor in his final summation to the jury did not refer to the fact that appellant had not testified. On the other hand, when appellant's counsel made his final statement to the jury, he called the . jury's attention to the instructions given by the trial court, then proceeded to inform the jury that based upon these instructions they were not to draw any conclusions from the fact that appellant did not take the witness stand. When taken at face value, the instructions appear to be inadequate. However, when defense counsel was permitted to place his own interpretation on those instructions and neither the State nor the judge interfered with his interpretation, the end result was that by reason of defense counsel's statement the jury in fact was properly instructed concerning the defendant's right to take the witness stand.
I can find no justification for the reversal of this case.