dissent">George Rose Smith, Justice,

dissenting. In State v. Ross, cited by the majority, we reversed the judgment because-the trial judge had affirmatively instructed the jury that a culpable misrepresentation can relate to future conduct if accompanied by a present intention not to perform the promise. We had no choice except to reverse, because, as we pointed out, it is the settled rule that one’s promise to do a future act which he does not actually mean to do is not a criminal false pretense.

In Ross the trial judge gave the jury bad law, which was error. Here the judge merely refused to give the jury what would have been good law if the proof called for the instruction. Thus the question is: Was the instruction required by the evidence?

It seems clear that it was not; so the instruction would have been abstract. Whether Dean made promises (a) in good faith or (b) with a fraudulent intent not to perform them was simply not an issue raised by the testimony. Dean himself was the only person who knew his subjective intent, but he declined to testify. The issues of fact related only to what Dean actually did, not to what he thought.

In fact, the appellant’s only contention in the trial court and here is that in the absence of the requested instruction the prosecutor could argue to the jury that a misrepresentation with no intent to perform would be a false pretense. But that is not the law. It is something new for us to require trial judges to instruct juries upon abstract principles of law so that the prosecutor will not argue a theory that is not the law. There are better preventives. If Dean’s lawyer feared such an argument he could have requested the court to instruct the prosecutor not to make it. He could have objected and asked for an admonition if the prosecution made such an argument. At the very least he could have made a record of such an improper argument. But none of those steps were taken. There is not one syllable in the record to suggest that the prosecutor was allowed to make the improper argument which Dean wanted to prevent. Thus the trial judge is being reversed for his failure to give an instruction having as its sole purpose the prevention of an improper argument; yet we do not have any reason to think that such an argument was made. This is not a question of presuming prejudice from error. It is simply a question of whether the appellant has met his burden of showing that an error occurred. It seems plain to me that he has not.

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