(dissenting). I cannot agree with Division Y of the opinion. In his address to the jury, the county attorney said:
(1) “Deep down in Mr. Milligan’s heart, he knows the defendant is guilty, and (2) I will tell you how he has said it to me.”
On objection by defendant, the court struck out part (1) and approved part (2) as “not out of the road” [wav].
I think part (2) was even more objectionable than tne first part, and should have been condemned, promptly and unequivocally. The attempted explanation by the county attorney of what he intended to say, availed nothing and explained nothing. The attempted explanation was itself improper, and should not have been permitted. It only intensified the prejudice. No explanation could justify the statement actually made. Later, the explanation was itself withdrawn by the county attorney. But the objectionable statement remained in the record, with the express approval of *1045the court. Such statement implied that the attorney for. defendant had privately confided to the county attorney his conviction of Ms client’s guilt.
If it were open to us to presume a finding of fact in sup-. port of the ruling of the court, we might presume that the defendant failed to satisfy the court that the statement objected to was, in fact, made. But the court expressly found, as a fact, that such statement was made. We are compelled, therefore, either to approve or to disapprove as prejudicial such statement by the county attorney.
Salinger, J., concurs in this dissent.