(dissenting)—The majority grant the defendant a new trial because they conclude that the deputy prosecuting attorney, in his closing argument to the jury, committed prejudicial error when he referred to the defendant as a “drunken homosexual.”
I dissent for the following reasons:
(1) In State v. Peeples, 71 Wash. 451, 459, 129 Pac. 108 (1912), we said:
*316“. . . While intemperate assertions of opinions not based upon any evidence will never be tolerated, it is none the less in the interest of a sound public policy that prosecuting officers be permitted a reasonable latitude in argumentative deduction from the evidence. ...”
Accord, State v. Griffith, 52 Wn. (2d) 721, 328 P. (2d) 897 (1958); State v. Brown, 35 Wn. (2d) 379, 213 P. (2d) 305 (1949); State v. Perry, 24 Wn. (2d) 764, 167 P. (2d) 173 (1946).
The use of the descriptive word “drunken” was justified under the evidence. One officer testified that the defendant had been drinking, but that he “could walk.” Another testified that defendant had been drinking, but he did not consider him “intoxicated” at the time of the arrest. When this officer was testifying, defense counsel, on cross-examination, made it plain to the jury that defendant had a “drinking problem,” as follows: “Q. Mr. Rose has quite a drinking problem, hasn’t he? A. Well, in most anyone’s opinion why I’d say he was a drinking man, yes.”
Defendant’s testimony relative to his drinking just prior to his arrest was as follows:
“Q. You had two or three drinks at the Terrace Room on the night in question, December 3rd? A. Yes. Q. Where had you been before that? A. Downtown. Q. Where downtown? A. If my memory is right, I think I had been in Murphy’s and I had also been in the, oh, Louis Mondau’s. They call it Louie Mondau’s Tug Boat. Q. Had you been drinking? A. I’d a few in there, yes. Q. When you were at the Terrace Room, would you say you were under the influence of intoxicating liquor? A. Oh, I could see where I was going all right; I could walk all right. Q. You could walk all right? A. You could always feel you could probably drink one more. Q. How much had you had that entire evening, if you recall? How much to drink? A. Oh, I would say maybe seven or eight.” (Italics mine.)
Based upon the testimony of the defendant that he had visited three cocktail lounges and had had seven or eight drinks of hard liquor, but “could see” where he was going, and “could walk,” and the officers’ testimony relative to the defendant’s conduct at the time of his arrest, the deputy *317prosecutor’s inference that the defendant was then drunk was justified.
(2) Assuming, arguendo, that the use of the word “drunken” was not merited by the facts, its use by the deputy prosecuting attorney was not prejudicial. In the light of the vile details of the act of sodomy by mouth being accomplished in the presence of the officers, and the sordid evidence with relation thereto, the descriptive adjective “drunken” could not have prejudiced the defendant, or detracted in the slightest degree from the repulsive, degrading, and obscene act which the jury found the defendant had committed.
(3) The characterization of the defendant as a homosexual was likewise justified by the evidence. It is not error to characterize the defendant in a criminal prosecution as the type of person who would commit the offense with which he is charged. In State v. Brown, supra, at p. 386, we upheld the prosecutor’s reference to a defendant charged with sodomy as a “pervert” for the reason that “it could be legitimately adduced from the evidence that appellant here was guilty of sex perversion.” (Italics mine.) In State v. Buttry, 199 Wash. 228, 250, 90 P. (2d) 1026 (1939), we stated: “Nor is it prejudicial to refer to a defendant as ‘a red-handed murderer’ where the charge is murder, and the state’s evidence strongly tends to establish that the defendant is guilty of the charge.” Accord, State v. Evans, 145 Wash. 4, 258 Pac. 845 (1927). In State v. Perry, supra, we upheld the prosecutor’s reference to the defendant in a rape case as a “mad dog” and “beast.”
In the instant case, both patrolmen testified that the defendant committed an act of sexual perversion which would clearly justify the characterization of the defendant as a homosexual. In the light of this evidence and the cited decisions of this court, the deputy prosecutor’s comment was a legitimate inference from the evidence presented at the trial.
(4) Finally, defense counsel invited the prosecuting attorney to explain to the jury, in effect, why any person in his right mind would continue such a repulsive act of *318sodomy, when the headlights of the officer’s car were shining on the rear of the defendant’s car. The deputy prosecuting attorney’s answer to defense counsel’s invitation to explain was that the defendant was drunk, and for that reason he was not then acting as would a person in his right mind. When defense counsel’s argument invites an answer, “Appellant cannot predicate error upon statements made within the scope of the invitation.” State v. Cunningham, 51 Wn. (2d) 502, 507, 319 P. (2d) 847 (1958), and case cited. In the light of the defendant’s own testimony that, just prior to his arrest, he had had seven or eight drinks of hard liquor, and that of the officers that defendant and his companion committed sodomy in their presence, the statement that defendant was a “drunken homosexual” was well within the scope of the evidence and of the invitation to explain.
In my opinion, the judgment and sentence should be affirmed.
Weaver, J., Dawson and Ryan, JJ., Pro Tern., concur with Ott, C. J.