(concurring):
I concur in parts II and III of the court’s opinion. As to Part I, I concur in the result but wish to add these brief comments on the issue of the prosecutor’s argument which has troubled me.
The trial record shows no instruction that closing arguments are not evidence for the jury to consider, as in Donnelly v. DeChristoforo, 416 U.S. 637, 641, 94 S.Ct. 1868, 40 L.Ed.2d 431. Nor do we have any argument transcript showing that counsel made such a statement, except as the prosecuting attorney’s statement, quoted in the court’s opinion, may so indicate. (Casemade, 347A).1 We have the trial court’s admonition (following the comment and objection) that “You should tell the jury that’s based entirely upon this ' evidence . . . ” and counsel’s response:
Yes, sir, based on the evidence, that’s the way it seems to me. And Young, even in spite of the fact that he is a murderer, is a very fortunate man in a lot of ways, as compared to Dale. Because there he sits, two court appointed attorneys to talk for him. He is entitled to have his guilt or innocence, the question of whether he should live or die, passed on by you twelve jurors.
The appellant’s petition alleged that the argument quoted in the Court’s opinion and other argument violated his constitutional right to due process under the Fourteenth Amendment, and other rights, and the issue is troublesome on this record. However, I agree with the conclusion that constitutional error is not shown, considering the record as a whole.
Instruction 13 told the jurors, among other things, that they were the judges of the facts, and that they should not let sympathy, sentiment or prejudice enter into their deliberations, and lastly that they should “return such verdict as the evidence warrants when measured by these instructions.” (Casemade, 344). Instruction 15 charged, among other things, that the jury should apply the instructions to the evidence in the case and “in so doing endeavor to arrive at a just and true verdict under all the instructions and all the evidence in this case, and return such verdict into court.” (Casemade, 345).
Lastly I note that when the trial judge overruled a motion for a mistrial based on the prosecutor’s statement of opinion of guilt, the judge stated:
As the matter stands before the jury now, I just told them he expresses that opinion based upon the evidence in this case. And I am certain that the jury understands that he did not *974try to connote that he had any information that they do not have. (Case-made, 348).
Under the circumstances I agree that we should not hold that such comment constituted a denial of due process, as did the First Circuit in dealing with such an issue. See DeChristoforo v. Donnelly, 473 F.2d 1236, 1238.
. This court has been furnished the original record or “Casemade” by the Oklahoma Court of Criminal Appeals. It does not contain a transcription of the full arguments and apparently the only portion transcribed was that where the objection occurred to the comment containing the prosecutor’s opinion of guilt. (Casemade 347A, 348, 349).