dissenting. I would grant a rehearing in this case because in my judgment the majority was in error in reversing this case.
First of all, I do not consider the remarks of the prosecuting attorney so flagrant and improper as to warrant a mistrial. The attorneys in this case were both able trial counsel and it was a difficult case to try. It is not unusual for lawyers to argue with each other or interrupt each other during closing arguments.
I do not consider the first remarks of the prosecuting attorney objectionable. In fact, the court was quite proper in sustaining the objection to the remarks of the defense attorney. It would have been improper for the prosecuting attorney to collaterally attack the credibility of the witness by proving a specific act of misconduct by extrinsic evidence. Ark. Stat. Ann. § 28-1001, Rule 608 (b) (Supp. 1977).
The second remark the prosecuting attorney made, after an objection was made and sustained, related to whether a witness worked at the Children’s Colony. There was no evidence in the record that she did not work at the Children’s Colony at the time in question. Both counsel improperly “testified.”
The court, at the inception of its instructions to the jury, gave the standard instruction which is given to all jurors:
Arguments, statements, and remarks of attorneys are not evidence but are made only to help you in understanding the evidence and applicable law. Any argument, statements or remarks of attorneys having no basis in the evidence, should be disregarded by you.
I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who may have testified. If anything that I have done or said has seemed to so indicate, you will disregard it and form your own opinion.
Just before the colloquy occurred that is reported in the majority opinion, the judge said:
There was an objection earlier, which I sustained. I’m not sure myself from time to time trying to recall all of the evidence. Ladies and gentlemen, it is not my decision, it’s yours. You have heard the testimony and you are the ones who are to consider the evidence and the law. I’m going to admonish you again that if a lawyer tells you something that has no basis in the evidence, disregard it. If it does have basis in the evidence, you may consider it. [Emphasis added.]
This was a heated trial and both the State and the defendant were well represented. Both made long closing arguments to the jury, emphasizing the evidence that had been presented. The defense counsel was guilty of testifying to a certain extent. For example, he made the flat statement as quoted in the majority opinion: “The man has never been unfaithful to his wife. He has been faithful to her — he has been true to her.” In another instance he said, “O. J. Chronister did not lie to you when he took the witness stand. ”
Most trial lawyers exaggerate or emphasize favorable testimony. I do not consider the remarks as serious enough to warrant reversing the jury’s verdict and ordering a new trial. The jury had been admonished to disregard statements made by the attorneys, and this had been emphasized just before the remarks were made in this case.
Even so, all of this is academic because there was no objection whatsoever by the appellant to the remarks by the prosecuting attorney. The appellant asks us to consider the remarks as plain error and reverse the judgment of the trial court. The only case cited by the majority to justify its action in this case is Brown v. State, 143 Ark. 523, 222 S.W. 377 (1920). In the Brown case there was an objection to the remarks of the prosecutor. The same is true in the case of Hays v. State, 169 Ark. 1173, 278 S.W. 15 (1925). In the case of Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976), there was a prompt and proper objection to improper statements by the deputy prosecuting attorney. I cannot find a case where we reversed the judgment of a trial court for improper remarks of a prosecuting attorney where no objection was made.
We have also held many times that we will not consider an issue raised for the first time on appeal. O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618 (1972). if the majority is going to depart from these rules, it should say so. Reversal is a serious matter, justified only for prejudicial error or violation of a substantial right. I cannot agree that the remarks of the prosecutor in this case were prejudicial error. The defendant has shown nothing to indicate that prejudice existed, and, most importantly, there was no objection made.
Therefore, I would grant the rehearing and affirm the trial court’s judgment.