¶1 (dissenting) — In my opinion, the attorney for the state was, in the course of his argument to the jury, guilty of such misconduct as entitles appellant to a new trial. One of the principal questions to be determined by the jury was whether or not the death penalty should be inflicted. The fact of the killing was practically admitted.by appellant, and his plea of mental irresponsibility was not very vigorously maintained. In arguing for the infliction of the death penalty, counsel for the state, in the portion of his argument quoted in the majority opinion, stated that the average term served by a convict under sentence of life imprisonment does not exceed eight years, and that appellant, if sentenced to life imprisonment, would in a few years be eligible for parole. Even if correct in point of law, this argument covered a mat *678 ter which the jury had no right to consider. The argument was wrong from every possible standpoint, and, in my opinion, was so prejudicial that it must be held that the appellant did not have that fair trial guaranteed him by the constitution. In my opinion, appellant is entitled to a reversal of the judgment from which he has appealed, and to a new trial.
¶2 (dissenting) — I concur with Judge Beals upon the theory that the statements made in the argument of the prosecution were such that we must presume they were prejudicial upon the issue of whether or not the death penalty should be inflicted.