¶1(concurring specially):
¶2I disagree with the majority opinion that the actions of the Attorney General created an atmosphere of prejudice in this case which requires reversal.
¶3It is the duty and responsibility of the Attorney General and the District Attorneys to prosecute criminal cases with vigor and with zeal. Very often in the heat of a trial, the attorneys for both sides drift out of bounds with their arguments. The trial judge is there as an impartial referee to see that neither side does this.
¶4If either counsel crosses the bounds of legal argument into a questionable area, upon objection, the trial judge should limit the scope of such argument and where appropriate, admonish the jury to disregard such statements or give them other proper instructions.
¶5To quote from Arant v. State, 232 Ala. 275, 167 So. 540 (1936) :
“Counsel for the state and defendant are allowed a rather wide latitude in drawing their deductions from the evidence.
“. . . Such statements are usually valued by the jury at their true worth . . . and not expected to become factors in the formulation of their verdict. .
“. . . But, after all, we must not lose sight of the fact that a trial is a legal battle, a combat in a sense,-and not a parlor social affair. ...”
¶6There are many reported cases dealing with what arguments are permissible on behalf of the prosecution. Many of those decisions amount to no more than the appellate courts exercising 20-20 hindsight without the benefit of having been present during the “combat” of the trial, as was the trial judge. Since the trial judge had the opportunity to see the attorneys during argument, observe their demeanor and any visible effect their comments may have had upon the jury, we should exercise extreme caution in reviewing his rulings.
¶7*33Many of the comments herein complained of, while hard and hitting, were nevertheless permissible inferences which could have been drawn from the evidence. We should only be persuaded to a reversal where an argument goes to prejudicial matters not in evidence which either cannot be eradicated from the minds of the jurors, or being eradicable, where the trial court overrules objection thereto or fails to properly instruct the jury. See: Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).
¶8I concur only in the result of the majority opinion, based upon the ruling of the trial court in reference to argument concerning the wife and fatherless children of the deceased. Such argument was not based upon the evidence, and there is a clear-cut precedent that such an argument is prejudicial whether or not it was inadvertently made during the heat of the trial.
¶9I am of the opinion that even though prejudicial, it was such that could have been eradicated from the minds of the jury by proper instruction of the court. The court gave no such instruction and in fact, overruled the defendant’s objection to such argument. Thus, pursuant to both Low-man and Fisher, cited in the majority opinion, supra, the case is due to be reversed.