dissenting:
In view of the fact that five members of this court deem it necessary to grant the defendant a new trial based solely *191upon the conduct of the prosecuting attorneys, I must dissent.
The majority state that the prosecutors withheld evidence favorable to the defendant and that this withholding was magnified by the argument to the jury, and it is asserted that the prosecutors “attempted to buttress” their position by eliciting testimony to show that the deceased was unarmed and to negate the defense of self-defense, and that they were overzealous in their effort to convict. In my examination of the trial record, I would say it is unfair to ascribe sinister motives to the two prosecutors who tried this case, or that anything occurring before the closing argument erroneously prejudiced the defendant.
It is clear from the record that the primary factual issue, in fact the only one involving a conflict in the evidence, related to the question whether the victim or the defendant shot first. The case was tried by both parties on the issue of self-defense. The defendant testified in his own behalf and produced one witness who testified that the victim shot first. The chief prosecution witness, a barmaid, testified that she saw the defendant fire his gun first and that she did not see a gun in the possession of the victim. There can be no argument, from the physical facts, that her story was not accurate. The fact that she testified she did not see a gun in the possession of the victim had a direct bearing on the sequence in which the guns came into play, not on whether the victim had a gun. To me, it is impossible in the context in which this testimony was elicited to imply an attempt on the part of the prosecutors to lead the jury to believe that at no time during the occurrence did the victim shoot the defendant, much less that he did not have a gun. In fact, in the opening statement for the People, the jury was advised that evidence of this nature would be introduced.
Except for the statement in the People’s closing argument that the jury had not seen the gun (and by implication the victim did not have or use one), the failure to produce the gun was immaterial. The jury, from all that had preceded the closing argument, knew that the victim had shot the *192defendant in the foot. Whether this unfortunate statement, absent an evil intent, was sufficiently prejudicial to require the granting of a new trial was the question which this court should have decided. On that issue I might have been persuaded to grant the defendant a new trial.