¶1This is a companion case to the case of Burrell Bond v. The State, just decided. In this as in that case at a former day of this term the judgment of the lower court was reversed and the cause remanded, for a supposed error in the charge of the court. One error in that respect is pointed out and discussed in Bond’s case. For the reasons therein stated the motion for a rehearing in this case is granted.
¶2Upon the merits of this case we find but two bills of exceptions in the record; one being to the overruling of the defendant’s application for continuance for the absence of the witness Kissinger. This application in every material respect is a duplicate of the one in the Bond case, and for the same reasons as therein stated the ruling of the court upon it is sustained.
¶3The second bill of exceptions complains that the county attorney in his closing argument to the jury stated that “ this defendant stood mute and said nothing when accused of this crime by Pierce, the prosecuting witness, in the presence of the officers of the law.” The county attorney, in so stating, was entirely within the record as we read it, and stated what was a fact in the case, and one which was as much and legitimately a subject for discussion, argument and inference as any other fact in the record. A prosecuting officer certainly has the right to discuss, use and comment upon the legitimate facts in evidence, and his duty requires him to do so when called to argue a case in behalf of the State.
¶4There is no error in this record and the judgment is affirmed.
¶5Affirmed.