¶1concurring in result.
¶2I concur in all parts of the opinion of Justice Huskins except in the suggestion therein that the argument of the prosecuting attorney was improper. I see no impropriety in it.
¶3*604In State v. Westbrook, 279 N.C. 18, 39, 181 S.E. 2d 572, this Court said:
“This Court has said that the argument of counsel must be left largely to the control and discretion of the presiding judge and that counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432; State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424; State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466; State v. Little, 228 N.C. 417, 45 S.E. 2d 542. He may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not ‘travel outside of the record’ or inject into his argument facts of his own knowledge or other facts not included in the evidence. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762; State v. Dockery, 238 N.C. 222, 77 S.E. 2d 664; State v. Little, supra.On the other hand, when the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by evidence, the defendant is not entitled to a new trial by reason of being characterized in'uncomplimentary terms in the argument. State v. Brown, supra.
“In 53 Am. Jur., Trial, § 504, note 8, it is said, ‘The line between denunciation and abuse which will reverse a conviction, and that which will not, … seems to rest on the distinction between mere personal abuse and invective called forth by the character of the crime shown by the evidence.’ …
“Applying these principles, to the present case, we find in the vigorous argument of the prosecuting attorney and his urging that the jury return a verdict of guilty of murder in the first degree without a recommendation as to punishment, which, in effect, fixes the punishment at death by asphyxiation, no departure from the evidence and legitimate inferences to be drawn therefrom.”
¶4State v. Westbrook, supra,was the unanimous opinion of this Court. The death sentence therein sustained was vacated on an entirely different point by the Supreme Court of the United States. See, State v. Westbrook, 281 N.C. 748, 191 S.E. 2d 68. The Supreme Court of the United States did not note any *605error whatsoever in our decision so far as argument of counsel is concerned. Had the rule so adopted by us, approving the prosecuting attorney’s argument, been deemed erroneous West-brook would have been entitled to a complete new trial, not simply a vacating of the death sentence.
¶5The tidal wave of civil rights fanaticism, which has swept over this nation, has washed into judicial opinions many errors which hamper the administration of criminal justice. In the slushy quagmire which has resulted, the rate of incidence of vicious crimes continues to rise in this State as it does elsewhere. Two of these errors are (1) the false idea that a prosecuting attorney must present the State’s case in a calm, detached, neutral manner while defense counsel is free to employ any tactics and arguments his ingenuity can suggest, and (2) race is a fact which can never be mentioned in a criminal trial.
¶6The prosecuting attorney is an officer of the court. So is the defense counsel. Both are members of the Bar and both are obligated to represent their clients pursuant to the high standards set in its Code of Ethics. It is not proper for either knowingly to misstate the law, distort the evidence, draw unwarranted inferences therefrom, inject irrelevancies or appeal to prejudice in his argument to the court or the jury, but neither is required to present his argument with the impartiality and calmness of voice expected of the judge in delivering his charge to the jury.
¶7The prosecutor, like the defense counsel, is an advocate. Prior to trial he has examined the State’s evidence and interviewed witnesses. As a result, he has satisfied himself of the defendant’s guilt to the extent of drawing the bill of indictment and determining to place the defendant on trial and seek his just conviction and punishment. The grand jury, in his absence, has heard some or all of the State’s witnesses and has found probable cause. It is the prosecutor’s duty to present the State’s case in its strongest, fair light. The defense counsel owes a similar duty to the defendant. This is our adversary system of justice — zealous, fair advocacy before an impartial judge and jury.
¶8It is well for the trial judge to remain on the bench throughout arguments, both by the prosecuting attorney and by the defense counsel, in order to avoid improper remarks by counsel in their zeal and in the heat of their battle for the *606jury’s verdict. It would also seem advisable for all arguments to the jury to be taken by the court reporter and to be included in the record on appeal in the event the defendant assigns as error the remarks of the prosecutor.
¶9Zeal, oratory and emphatic presentation by counsel in presenting evidence or argument thereon, be he prosecutor or defense counsel, is to be commended, so long as it does not tend to divert the jury’s attention from the evidence in the case. The prosecutor, like the defense counsel, should be left free to strike hard blows, so long as they are fair. The test is thus stated by Justice Huskins, speaking for a unanimous Court in State v. Monk, 286 N.C. 509, 212 S.E. 2d 125, wherein we allowed a new trial for the prosecuting attorney’s “departure from the evidence and the legitimate inferences to be drawn therefrom”:
“Counsel for both sides are entitled to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom. State v. Conner, 244 N.C. 109, 92 S.E. 2d 668 (1956) ; State v. Willard, 241 N.C. 259, 84 S.E. 2d 899 (1954) ; State v. Campo, 233 N.C. 79, 62 S.E. 2d 500 (1950). Language may be used consistent with the facts in evidence to present each side of the case.”
¶10Again, in State v. Stegmann, 286 N.C. 638, 654, 213 S.E. 2d 262, this Court said:
“It is the duty of the prosecuting attorney in all phases of the trial to present the State’s case with earnestness and vigor and to use every legitimate means to bring about a just conviction.”
¶11Thus, the test of proper argument is whether it is relevant to the issue to be decided by the jury and a fair statement of the evidence and of legitimate inferences and conclusions to be drawn therefrom. It is not required that all fair minded persons will agree with counsel’s inferences and deductions from the evidence. As we said in State v. Monk, supra,it is enough that they be reasonable and relevant to the issue.
¶12The argument of the prosecuting attorney in this case that “the average white woman abhors anything of this type in nature that had to do with a black man,” meets this test and was legitimate, proper argument.
¶13The very nature of the crime of rape raises for the jury’s determination the question of whether the alleged victim con*607sented to the sexual intercourse. The burden rests upon the State in every rape case to prove beyond a reasonable doubt that she did not so consent. The determination of whether she did or did not consent is not a matter in which the jury is limited to her denial of consent in her testimony. Consent, or lack of it, is also a matter of inference or conclusion from the surrounding circumstances. Both the State and the defense are entitled to call to the jury’s attention, in argument, matters in evidence from which may be drawn the inference or conclusion it urges the jury to draw. The appearance of the defendants, identified in the courtroom by the alleged victim as her assailants, is a matter before the jury. Furthermore, in the testimony of the State’s witness, Mr. Franklin, they are referred to as “colored.” Obviously, the jury knew, before the argument by the prosecuting attorney that this is a case in which the State charges three Negro men with the rape of a white woman.
¶14Is it then a legitimate inference that, because of this racial difference between the participants, the alleged victim did not consent to the intercourse? Of course it is. Every boy and girl of junior high school age knows that personal appearance is a factor in the desire for and willingness to accept sexual relations. No principle of law requires members of this Court to pretend to be ignorant of a truth we have all known since before we first began dating members of the opposite sex. Personal attractiveness to members of the other sex is affected by many things — race, cleanliness, facial features, size, shape, manner, clothing and many others. One who doubts it need only look at television and other commercial advertising. Of course, every person is not affected in the same way by the race of another or by other aspects of his or her personal appearance, but to say that the race of a man proposing sexual intercourse to a woman is not a legitimate factor in determining her consent to his advances is utterly unrealistic.
¶15No provision of the State or Federal Constitution requires that racial difference be ignored in the trial of an action in which it is relevant to an issue to be determined. As Benjamin Disraeli, a member of a minority, said: “No man will treat with indifference the principle of race, for it is the key to history.” Certainly, common experience and observation lead to the conclusion that racial difference is relevant to the question of a woman’s consent to acceptance of a man as her partner in sexual relations.
¶16*608It is important to remember that the prosecuting attorney-mentioned race only on the question of consent. This injects no prejudice into the case. He did not argue that these defendants are Negroes and, therefore, more likely to commit rape than three white defendants would be. Race of the defendant would not be relevant to a prosecution for robbery, burglary, larceny, murder or reckless driving, just as personal uncleaniness, filthy dress or facial expression would not be. Race would be completely irrelevant to the determination of the punishment to be inflicted upon the convicted rapist or a defendant convicted of any other crime. Obviously, it would be improper argument for a prosecuting attorney to ask a jury to infer that because a defendant is a member of the Negro race, or of any other race or group, he committed one of these other offenses, or to argue his race as a basis for inferring any other element of the crime of rape, but, on the issue of consent in a charge of rape, for a court to say that racial difference between the man and the woman is not relevant and, therefore, not a proper matter for argument, is simply contrary to human experience. The State’s argument was not that rape of a white woman by a Negro man is a worse crime than her rape by a white man. The argument was that the prosecutrix did not consent to the intercourse. In my opinion, the argument was entirely proper.