(concurring specially).
Defendant’s assignment of error concerning the trial court’s refusal to grant a motion for new trial on the basis of the prosecutor’s improper comment in final argument that the case involved two misdemeanors was addressed by instruction eighteen. This curative instruction stated: “The question of possible punishment of the defendant in the event of conviction is no concern of the jury and should not enter into or influence your deliberations in any way.” In addition, the trial court advised the jury during argument “that any comments made concerning the nature and gravity of the offense, is not material, and you are only to consider the facts in this case . . . and not to in any manner consider the punishment in this case. . . ” Clearly, the trial court acted within the bounds of legal propriety.
It is important to note, as mentioned in the majority opinion, that defense counsel objected to the prosecutor’s remark, “I think he [defendant] attempted to stab her.” The objection was sustained. However, he did not follow through and move the court to admonish the jury, move for a mistrial, or request an instruction regarding this improper argument. It is incumbent upon defendant to challenge by a proper objection a statement made in court and obtain a ruling upon the objection thereto. “[T]he defendant should then request the trial court to give a proper instruction thereon; and, failing to do so, he cannot now be heard to complain.” State v. Christiansen, 46 S.D. 61, 67, 190 N.W. 777, 779 (1922).
One may also review our decision in Schlagel v. Sokota Hybrid Producers, 279 N.W.2d 431 (S.D.1979), wherein we held that where the trial court was denied an opportunity to immediately admonish the jury to disregard remarks not in evidence, the trial court’s refusal to grant a motion for mistrial did not constitute an abuse of discretion or result in a miscarriage of justice. In my specially concurring opinion in Schlagel I pointed out that it was preferable to: (1) object to the misstatements in open court; (2) make a motion for mistrial in chambers; and (3) if the motion is denied, to specifically request an instruction. I hold to that view.