The opinion
HOLLINGSWORTH, Judge.
I respectfully dissent from that portion of the opinion reading as follows: “The final complaint is that the court erred in failing to sustain defendant’s motion to discharge the jury ‘when the prosecutor deliberately commented on the failure of the defendant to testify or produce evidence thus prejudicing the defendant.’ That assignment apparently relates to the following argument of the assistant prosecuting attorney : ‘Mr. Shute: * * * They say there was no evidence to connect the defendant with this. Well, gentlemen, you know the facts. The defendant knows about things you don’t know about. It wasn’t our fault. He liad as full an opportunity as we did to produce evidence.’ 1 Upon authority of State v. Hayzlett, Mo.Sup., 265 S.W.2d 321 , and cases cited therein, we rule that the quoted statement did not constitute a reference to defendant’s failure to testify, in violation of Supreme Court Rule 26.08.”
*756 Supreme Court Rule 26.08, Vol. 1, V.A. M.R., p. 189, provides: “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.”
I am convinced that the statement of the assistant prosecuting attorney was intended to and, in fact, did refer to defendant’s failure to testify in his own behalf; and that, as held in State v. Hayzlett, supra, 265 S.W.2d loe. cit. 323, “[i]f the prosecuting attorney in fact, either directly 'or indirectly, referred to the appellant’s failure to testify he is entitled to a new trial.” I would, therefore, reverse and remand.
. All emphasis herein is supplied.