(concurring in the result):
With the result of the main opinion, I agree, but find in the record significantly different reasons for achieving it. I disagree with the main opinion’s characterization of the prosecutor’s comments. It states them to be pertinent statements or deductions, reasonably to be drawn from the evidence, which made no direct reference to defendant’s assertion of his right against self-incrimination.
The prosecutor said:
The defense has presented no evidence as to why the defendant was out there. What was he doing out there? [Emphasis supplied.]
Defense counsel objected to this remark, and was sustained; moved for a mistrial which was denied.
Within the context of the record the reference to evidence must be to testimony, and the obvious implication is that defendant had proffered no explanation. Who but defendant could offer an explanation as to his motives or intention for being in a specific location at a certain time? The comments of the prosecutor were a bold attempt to draw an inference from defendant’s failure to testify, i. e., he knew the “why” and “what” and he declined to explain.
The exercise of the privilege is not evidence and carries with it no legitimate inference.1
The prosecutor used the non-testimony of the defendant to mislead the jury into drawing an inference from the defendant’s exercise of his constitutional privilege.2 Significantly, the court interpreted the argument of the prosecution as “a comment on his failure to take the stand,” and cautioned the jury that nothing should be inferred from the State’s comment; and that the jury was to follow the instructions given by the court:
I will admonish counsel not to pursue that argument, and I will remind the jury as I did at the outset of this trial, statement of counsel is not evidence.
* * * * * ' *
I might caution the jury just a little bit more on this. In argument to the jury here — and it’s contrary to my instruction — and that’s on instruction that defense counsel emphasized on defendant’s failure to take the stand, that no inference at all can be drawn from that, and I particularly invite your attention to that, that nothing should be inferred by State’s comment on that, and it was a comment on his failure to take the stand, but you follow the court’s instruction as I gave them to you.
The argument by the prosecution constituted a denial of defendant’s constitutional right to remain silent and was error. This is not a case in which, absent the constitu*953tionally forbidden comments, honest fair-minded jurors might very well have brought in a not-guilty verdict.
Under these circumstances, but for, the prompt and certain reaction of the trial judge this prosecutorial error would not have been harmless. As it stands it can be deemed harmless beyond a reasonable doubt.3
TUCKETT, J., concurs in the opinion of MAUGHAN, J.. State v. Smith, 74 Wash.2d 744, 446 P.2d 571, 580, 582 (1968).
. See A.B.A. Standards, The Administration of Criminal Justice, The Prosecution Function, Sec. 5.8(a), p. 98: “The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.”
. Chapman v. Calif., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).