¶1We are in full accord with the opinion of the Chief Justice except that portion relating to the fourth question. It is our view that this question should also be decided adversely to appellant and the judgment of the Court below affirmed.
¶2The record does not disclose the remarks of appellant’s counsel to which the Solicitor objected. It may be fairly inferred, however, that he was seeking to give an explanation *3of the failure of the defense to offer any evidence. If so, it was appellant’s counsel who first called the jury’s attention to the fact that no testimony had been offered by the defense. Under these circumstances, it is difficult to perceive any prejudice to the rights of appellant. Moreover, we think it would be a strained and unwarranted construction to hold that the statement of the Solicitor constituted an indirect or implied comment on the failure of appellant to testify. Evidently it was not so construed either by the court or counsel, for there was no exception to the remarks of the Solicitor, nor was the question now raised included in the grounds of the motion for a new trial.
¶3It was held in State v. Pendarvis, 88 S. C. 548, 71 S. E. 45, that remarks by a Solicitor of a much more serious nature than those here involved were not prejudicial. While in a case involving the death penalty, the Court should be on the alert to see that every right of the accused is preserved, we think it would be going too far to say that the incident complained of might have influenced the verdict of this jury.
¶4It is true that the jury was not instructed that no adverse inference could be drawn against appellant by reason of his failure to testify, but in the absence of a request to that effect, there was no error in failing to give such an instruction. State v. King, 158 S. C. 251, 155 S. E. 409. It is also exceedingly doubtful whether such an instruction would have been of any aid to appellant.
¶5A majority of the Court having concurred in the views herein expressed, it is the judgment of this Court that the sentence and judgment of the Court below be affirmed.