(concurring) — I am writing a short concurrence because the manner in which the majority handles the failure to make objections to the improper arguments of the prosecutor fails to give any guidelines to prosecutors, *532and to the bar generally, as to what we regard as being or not being “so flagrant and prejudicial as to be incurable by instruction from the court.”
Our holding, to be of any assistance to the bar or to have any precedental value, should quote or paraphrase the language used.
The prosecutor in his opening argument after, conceding with relation to the evidence that “it’s not an awful lot” called attention of the jury to the suspicious circumstances such as the sheriff’s officer who testified “These guys were suspects as soon as they got the call.”
Passing the matter of the attempt to bolster the evidence .with suspicions, it is evident that the prosecutor put the weight of his knowledge of the facts onto the scales in his concluding statement — “if you don’t convict these two, you’ve made a very serious mistake.”
Conceding that statements made were improper and prejudicial, I agree with the majority that the error could have been and would have been corrected had the trial court been requested to do so by an instruction to disregard the statements of the prosecutor. Defense counsel was aware of his remedy, and had objected to the prosecutor’s statement “He (referring to defense counsel) says these other three boys weren’t checked out. As a matter of fact they were and we found they weren’t in the area at this time.” The trial court sustained the objection to that statement, and instructed the jury to disregard it.
The failure of defense counsel to object to the statements now claimed on appeal to be improper and prejudicial may have been a matter of trial strategy (counsel must choose between being strategists and preserving their records). No objection was made to these statements at the trial, and I agree with the majority that the claimed error could have been corrected, and “was not so flagrant and prejudicial as to be incurable by instruction from the court.”
October 8, 1969. Petition for rehearing denied.