(dissenting).- I am in full agreement with the majority as to the disposition of the first two issues raised by defendant. However, whether or not the defendant was entitled to a severance of his trial is a close and perplexing problem.
Sometime before trial, counsel for codefendant Norman McGilmer filed an affidavit in support of his motion in opposition to consolidating the trial of Norman McGilmer with that of his brother Calvin McGilmer. Counsel claimed that if consoli*440dation were granted, as attorney for defendant Norman McGilmer he would argue that the case against Calvin McGilmer was very strong; therefore, to consolidate the trials would also serve to greatly prejudice Norman because of the jury’s natural inclination to associate Norman with his obviously guilty brother Calvin. Calvin McGilmer made no written motion nor filed any affidavit but orally moved opposing consolidation.
The suggestions that the finger-pointing by Norman McGilmer against his brother was a sham bears careful consideration since counsel for Norman McGilmer acknowledged a refusal by his client to take the witness stand and accuse his brother Calvin while he was on trial with him. However, in the next breath, so to speak, Norman McGilmer did in effect testify against his brother through his attorney’s accusations in his opening statement and in closing argument to the jury.
The position of Calvin McGilmer was not antagonistic to Norman McGilmer. The sole witness called by defendant Norman McGilmer was a police officer who testified regarding booking pictures of that defendant which apparently had been labeled with the wrong name. The antagonism claimed by Norman McGilmer sprang from the words of his counsel, who declared in his opening statement:
"[T]he government will prove Calvin McGilmer guilty beyond a reasonable doubt, and I stand here accusing Calvin McGilmer of being guilty beyond a reasonable doubt. There is direct evidence implicating him in this crime. Mr. Blixt did not mention it, but Mr. McGilmer was found with coins, a number of dimes and nickels on him that Mr. Schatz or Shots [sic] will say came, or Mr. Hohmann will say came from his apartment, therefore I ask you don’t hold this against Norman McGilmer.
*441"The People will show that Calvin McGilmer was present at the scene and that he had stolen property on his person when he was stopped.”
In closing argument, counsel for Norman Mc-Gilmer argued:
"The case against Calvin McGilmer is a very, very strong one.”
These mere conclusionary, arguable allegations of antagonistic defenses made by counsel for Norman McGilmer should not inure to the benefit of Norman McGilmer. The opening statement in its simplest form was not only argument but in great part argument by counsel for Norman McGilmer on behalf of the people against Calvin McGilmer. Based on what was presented to the trial court the rulings which first granted consolidation and later denied severance were not erroneous. Surely something more should have been proffered to support an antagonistic defense; else such bare allegations might become standard fare in future joint criminal trials. However, no matter how analyzed, the remarks in the opening statement and in closing argument by counsel for Norman McGilmer were of such a nature as to leave this writer with the impression that Calvin McGilmer was greatly prejudiced thereby. In addition, I am unable to legally conclude Calvin McGilmer was involved in a scheme to present the alleged antagonistic defense on behalf of Norman McGilmer. I would reverse and remand for a new trial.