(dissenting specially)—I have signed and I am in accord with the dissenting opinion written by Judge Donworth. The views expressed therein, the logic of the cases cited, seem to me. to be unanswerable. This is particularly true, if proper emphasis and effect are to be given *737to the presumption of innocence as I see its basic import and function in the operation of our machinery of justice; furthermore, if the twin or identical concepts of fair play and fair trial are to be implemented consistently, and with due regard for their painstaking, case by case synthesis spanning several centuries of Anglo-American jurisprudence.
The majority opinion appears to me to make several unwarranted assumptions:
(a) That asking an accused if he had initially pled guilty to the criminal charge confronting him, is analogous to the use of a confession by the prosecution, and, therefore, not inappropriate;
(b) That the trial judge in the case at bar, by instructing the jury to disregard the prosecutor’s question, effectively excised from the jurors’ minds or blotted out any impressions or inferences that the accused was guilty, which impressions or inferences may have been generated by the asking of the dubious questions as to guilt; and consequently, that the accused cannot or should not complain;
(c) That the prosecutor did not act in bad faith, and that the accused is thereby somehow protected and should not complain.
To me, to state these propositions, is to disagree with them. The assumption or suggested analogy—that the asking of the question is comparable to the use of a confession—has the fundamental weakness of all argument by analogy. As to this, suffice it to say, as pointed out in the dissenting opinion of Judge Donworth, arraignment and plea is a requisite procedural step in criminal prosecution. Realistically, it bears little or no analogy to a confession by an accused. The basic considerations, circumstances, or factors relating to the two things may be quite different, and they are just too dissimilar to justify analogy.
The second assumption mentioned above—that the trial court’s instruction prevented the jurors from considering the prosecutor’s question—imputes a fine, surgical skill to the court in extracting possibly prejudicial matter from the *738minds of the jurors-. Attributing such skill to the court in this instance seems unjustified. It involves a materialistic or mechanistic approach and analysis of the problem on that basis. But we are here dealing with mental processes, which, as yet, have not been subjected to or reduced to precise metric weight or measurement. Actually, we do not know what went on in the minds of the jurors, or for that matter, what made any one of their minds tick. In fine, it is presumptive and just too subject to miscalculation and error in judgment to conclude, either that the jurors were influenced or that they were not influenced by the prosecutor’s question. The only safe, sure course of action in the instant case is to permit a new trial. This will eliminate the imponderable problem of the effect the prosecutor’s question may or may not have had upon the minds of the jurors.
As to the third assumption mentioned hereinbefore, that the prosecutor acted in good faith: His good faith, or lack of it, has little to do with the question of whether the accused’s chances for acquittal were prejudiced before the jury. I approve and emphasize Judge Don worth’s analysis and criticism of this aspect of the matter.
Changing a plea of guilty to one of not guilty is permitted and recognized as a right of an accused. During the trial, the accused is entitled fully and completely to the benefit of the so-called presumption of innocence. If the prosecutor is entitled to ask the accused whether he had initially pled guilty to the crime charged, what is left of the presumption of innocence—State v. Bringgold, 40 Wash. 12, 82 Pac. 132 (1905), to the contrary, notwithstanding?