¶1(dissenting).
¶2I respectfully dissent and would reverse and remand this case for a new trial because of the prejudicial argument of the Assistant Circuit Attorney wherein he argued to the jury that if the victim were able to be there and take the stand he would have said that the stabbing was not done in self-defense. The majority opinion recognizes the impropriety of this argument, makes it clear that it does not condone it but concludes that the defendant was not thereby prejudiced.
¶3The single issue in the trial of this case was that of self-defense. The only witness of the scuffle which resulted in the stabbing of the victim able to give testimony at trial was the defendant. The state introduced into evidence defendant’s self-serving statements made to the police officers and he also took the stand and testified in his own defense. We are not favored in this court with the transcript of defendant’s testimony because an abbreviated record was filed herein. However, from defense counsel’s argument it can be deduced that defendant’s testimony at trial was self-serving for the purpose of establishing his theory of the case, viz self-defense. Viewed in this light, it is apparent that the purpose of the Assistant Circuit Attorney’s argument was to overcome the absence of the victim and testify in his stead by way of argument. There is not an iota of evidence in the case to support the challenged argu*44ment since there is no evidence that the victim at any time made any dying declaration or any other statement to anyone which would support a conclusion that he would so testify were he present.
¶4Neither the defendant nor the state has cited any authority directly in point, nor has independent research brought forth any Missouri case ruling on this argument. However, the Supreme Court of Pennsylvania when confronted with a similar line of argument recognized its insidious nature and on that grounds, and others, reversed and remanded a murder conviction in Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205. In Lipscombthe assistant district attorney argued:
“You know my best witness isn’t here today. But if he could come back, if Mr. Sweeney could come back and sit in this chair and face you, the jurors, I believe he would say, T didn’t want to die.
¶5In ruling the Point, the Supreme Court of Pennsylvania said, l.c. 207:
“Moreover, in testifying as if his ‘best witness’ Mr. Sweeney, was in the courtroom, that which followed amounted to the giving of testimony by an unsworn witness.”
¶6While, as the majority holds, the defendant may not be entitled to a “perfect trial,” I conclude that he is entitled to a trial without argument of this ilk which constitutes a violation of The American Bar Association Standards for Criminal Justice, Prosecution and Defense Function, § 5.9, which brands as unprofessional conduct intentional argument on the basis of facts outside the record at trial. We have here argument by the Assistant Circuit Attorney putting before the jury not only unsworn testimony but also evidence which the victim, if alive and on the stand, could not have mouthed over proper objection for the reason that such testimony constitutes an invasion of the province of the jury and is a conclusion striking at the only legal and factual issue in the case, that of self-defense.
¶7The evidence in this case, unlike that in United States v. LeFevre, 483 F.2d 477 (3rd Cir. 1973), is not overwhelming and this argument when taken in context with the trial court’s ruling — “It’s argument”— amounting to approval of the improper argument constituted, in my opinion, prejudicial error which would require that the judgment be reversed and remanded to the trial court for a new trial.