C. Paul Jones, Public Defender, Murray L. Galinson, Asst. Public Defender, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Alan M. Schlesigner, Asst. Atty. Gen., St. Paul, Paul J. Doerner, County Atty., St. Cloud, for respondent.

Heard before KNUTSON, C. J., and OTIS, ROGOSHESKE, SHERAN, and PETERSON, JJ.

OPINION

PER CURIAM.

Appeal from a judgment of conviction of the crime of attempted indecent assault.

The only legal question raised is whether it was error for the trial court to allude in its charge to the jury to the fact that the defendant failed to testify in his own behalf. State v. Sandve, 279 Minn. 229, 156 N.W.2d 230, filed February 9, 1967, since this appeal was taken, dictates affirmance.

The instruction that the failure of the defendant to testify does not create a presumption against him in a criminal prosecution should not have been given, particularly in the absence of any request for such an instruction by the attorney for defendant. But we are certain that the verdict of the jury was not affected by this comment in light of the evidence as disclosed by the record.

Affirmed.