
    State v. Black.
    I. Criminal Law: misconduct op state's attorney. It is provided by section 3636 of tbe Code tbat the attorney for the State shall not refer to the fact that the defendant did not testify on his own behalf. In this case there was a contention as to the exact language used by the attorney, and as the District Court may be presumed to have heard what was said, it will also be presumed that that court was justified in overruling defendant’s motion for a new trial based on the alleged misconduct of the attorney in that regard.
    
      Appeal from Greene District Court.
    
    Friday, September 22.
    The defendant was convicted of tbe crime of seduction. Judgment having been rendered upon tbe verdict, be appeals to this court.
    No appearance for appellant.
    
      Smith McPherson, Attorney-general, for tbe State.
   Adams, J.

Tbe defendant moved for a new trial on tbe ground of misconduct on tbe part of I. J. McDuffie, who acted upon tbe trial as attorney for tbe State. Tbe alleged misconduct consisted of a certain statement made by tbe attorney for tbe State in tbe course of bis argument to tbe jury. Tbe words alleged to have been uttered are as follows: “They have not attempted to deny, except by plea of not guilty, tbe fact of having sexual intercourse with tbe young girl.” Tbe defendant was not examined as a witness in bis own behalf.

Section 3636 of tbe Code, provides tbat tbe attorneys for tbe State shall not refer to tbe fact that the defendant did not testify in bis own behalf. If the words used were those above set out, and which tbe defendant and bis counsel show by their affidavits were used, it is difficult to resist tbe conviction that tbe attorney for the State did refer to the fact tbat tbe defendant did not testify in bis own behalf, and if tlie court was satisfied that he did make such reference, we think that the court should have set aside the verdict.

But the attorney for the State made an affidavit in which he said: “I did not in any form or manner refer to the fact that the defendant had not testified in his own behalf, or that he might have testified.” Now, while the question is not as to what the attorney had in mind, but what he said, and while it would have been more satisfactory if he had made a direct denial of using the words attributed to Mm, yet it is possible that he intended to make such denial, and in view of the fact that the court may be presumed to have heard what was said, we think that we should be justified in construing the attorney’s affidavit as containing such denial. We cannot say that the court erred in overruling the motion. We have to say, also, that we have examined the entire record and find no error.

Affirmed.  