FOSHEIM, Justice.
A jury convicted the defendant of eluding a police vehicle, in violation of SDCL 32-33-18.1 This appeal is from the judgment. We affirm.
The prime question is whether it was prejudicial error for the trial judge to release the jurors overnight without supervision after the case had been submitted to them for deliberation. The case went to the jury at approximately 4:45 p. m., November 23, 1981; the jurors left for supper under supervision of a bailiff at approximately 7:15 p. m. and returned about 8:00 p. m.; and at 9:25 p. m. the jury reported they were deadlocked after which the court directed them to re-read Instruction No. 23. At 12:35 a. m., November 24, 1981, the court, on its own motion and without prior discussion with counsel, stated to the assembled jury:
Very well, and it is about twenty minutes to 1:00 in the morning and obviously, the Jury has not yet reached a verdict on the matter. What I am going to do, Ladies and Gentlemen, is we are all going to go home and go to bed. And I would like to have you all come back at 10:00 o’clock tomorrow morning and continue your deliberations at that time in an effort to reach a verdict in the matter.
That statement was followed by the usual admonition not to discuss the case with anyone. There was, however, no supervision of the individual jurors by an officer of the court after they separated and returned to their homes. After the jury was released, the defendant’s attorney promptly stated his objections to this procedure. The court appeared to believe that SDCL 23A-25-5 allowed it, in its discretion, to release the jurors overnight without supervision. The statute is clear, however, that if the court allows the jurors to separate overnight, the jurors must be under the supervision of an officer.
SDCL 23A-25-5 reads as follows:2
Before the jurors retire for deliberation, one or more officers must be sworn to keep them together in some private and convenient place, with such suitable food and drink as the court shall direct. The court may, in its discretion, permit the jurors to separate during the adjournment of court overnight, under supervi[891]*891sion of the officer or officers. The officers shall not permit any person (including themselves) to communicate with the jurors or to ask whether they have agreed upon a verdict except by order of court. The officers shall return the jurors into court when they have agreed upon a verdict.
That statute in substantially its present form predates statehood. CL 1887, §§ 7406 and 7410. The specific reference to overnight separation first appears as an amendment in Chapter 130 of the 1955 Session Laws.3 When jurors have retired for deliberation and then have separated without supervision, State v. Church, 7 S.D. 289, 64 N.W. 152 (1895), established the test used to decide if a retrial is necessary.
[W]e know of no statutory provision which authorizes a court to permit a jury to which a criminal cause has been finally submitted to separate, after they have retired for deliberation to the seclusion of a jury room. . . . We believe the true and only safe rule to be that, where the separation is such that one or more of the jurors might have been improperly influenced by others, and there is nothing reliable to show that such influence has not been exercised to the prejudice of the accused, the verdict should be vacated, and the case be retried.
Id. 64 N.W. at 153. The Church proposition was further developed in Edward Thompson Co. v. Gunderson, 10 S.D. 42, 71 N.W. 764 (1897), with this language:
Although the testimony of jurors will not be received to impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they may always show, by their oaths, not only in their own vindication, but, in furtherance of justice, that they were not guilty of the misconduct charged against them.... The only reason for not allowing jurors to separate after a cause has been submitted is to prevent them from being improperly influenced by others; and when, as in this case, it affirmatively appears that during a temporary separation for an innocent purpose the juror has not conversed or held communication with any one on any subject, and could not have been influenced in any manner whatever, the irregularity, if any, should be regarded as not affecting any substantial right, and a new trial should not be granted. Nothing herein conflicts with what is decided in State v. Church (S.D.) 64 N.W. 152. . . . An examination of the entire [Church] opinion will disclose that it is authority for the foregoing rule, and nothing more. The doctrine therein declared is to this effect: Where the separation is such that one or more of the jurors might have been improperly influenced by others, the irregularity must be regarded as presumptively prejudicial, and the burden is cast upon the party seeking to sustain the verdict to show that such influence has not been exercised to the prejudice of the other party.
Id. 71 N.W. at 764-765. Accord, State v. Smith, 56 S.D. 238, 228 N.W. 240 (1929); State v. McCoil, 63 S.D. 649, 263 N.W. 157 (1935).
[892]*892In State v. Steensland, 56 S.D. 534, 229 N.W. 395 (1930), three jurors were separately brought to the sheriff’s office and permitted to inform their respective families by telephone that on account of being on the jury they would be unable to go home. It was shown by affidavits of the jurors that they did not talk about the case. We held that, while this procedure was improper, the showing disspelled any prejudice to the defendant.
On the morning following the overnight separation the court, with counsel participating, conducted an examination under oath of each juror. Based on the jurors’ testimony, the court concluded that the jurors had obeyed its admonition not to discuss the case with anyone and that no prejudice resulted to either party by virtue of the jurors’ separation without supervision.
It is apparent that the separation provided circumstances which make it reasonably appear the jury might have been improperly influenced by others and the irregularity must therefore be regarded as presumptively prejudicial. We further conclude, however, that the burden of showing that no such influence has been exercised to the prejudice of the defendant has been sustained.
Appellant also claims the state’s attorney made prejudicial statements during closing argument. During the voir dire, defendant’s counsel asked the jurors to agree with the proposition that jurors are not to infer anything from defendant’s failure to take the witness stand.
The court instructed the jury:
In this case the law raises no presumption against the defendant, but every presumption of the law is in favor of his innocence. He is not required to prove himself innocent, or put in any evidence at all upon that subject.
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FOSHEIM, Justice.
A jury convicted the defendant of eluding a police vehicle, in violation of SDCL 32-33-18.1 This appeal is from the judgment. We affirm.
The prime question is whether it was prejudicial error for the trial judge to release the jurors overnight without supervision after the case had been submitted to them for deliberation. The case went to the jury at approximately 4:45 p. m., November 23, 1981; the jurors left for supper under supervision of a bailiff at approximately 7:15 p. m. and returned about 8:00 p. m.; and at 9:25 p. m. the jury reported they were deadlocked after which the court directed them to re-read Instruction No. 23. At 12:35 a. m., November 24, 1981, the court, on its own motion and without prior discussion with counsel, stated to the assembled jury:
Very well, and it is about twenty minutes to 1:00 in the morning and obviously, the Jury has not yet reached a verdict on the matter. What I am going to do, Ladies and Gentlemen, is we are all going to go home and go to bed. And I would like to have you all come back at 10:00 o’clock tomorrow morning and continue your deliberations at that time in an effort to reach a verdict in the matter.
That statement was followed by the usual admonition not to discuss the case with anyone. There was, however, no supervision of the individual jurors by an officer of the court after they separated and returned to their homes. After the jury was released, the defendant’s attorney promptly stated his objections to this procedure. The court appeared to believe that SDCL 23A-25-5 allowed it, in its discretion, to release the jurors overnight without supervision. The statute is clear, however, that if the court allows the jurors to separate overnight, the jurors must be under the supervision of an officer.
SDCL 23A-25-5 reads as follows:2
Before the jurors retire for deliberation, one or more officers must be sworn to keep them together in some private and convenient place, with such suitable food and drink as the court shall direct. The court may, in its discretion, permit the jurors to separate during the adjournment of court overnight, under supervi[891]*891sion of the officer or officers. The officers shall not permit any person (including themselves) to communicate with the jurors or to ask whether they have agreed upon a verdict except by order of court. The officers shall return the jurors into court when they have agreed upon a verdict.
That statute in substantially its present form predates statehood. CL 1887, §§ 7406 and 7410. The specific reference to overnight separation first appears as an amendment in Chapter 130 of the 1955 Session Laws.3 When jurors have retired for deliberation and then have separated without supervision, State v. Church, 7 S.D. 289, 64 N.W. 152 (1895), established the test used to decide if a retrial is necessary.
[W]e know of no statutory provision which authorizes a court to permit a jury to which a criminal cause has been finally submitted to separate, after they have retired for deliberation to the seclusion of a jury room. . . . We believe the true and only safe rule to be that, where the separation is such that one or more of the jurors might have been improperly influenced by others, and there is nothing reliable to show that such influence has not been exercised to the prejudice of the accused, the verdict should be vacated, and the case be retried.
Id. 64 N.W. at 153. The Church proposition was further developed in Edward Thompson Co. v. Gunderson, 10 S.D. 42, 71 N.W. 764 (1897), with this language:
Although the testimony of jurors will not be received to impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they may always show, by their oaths, not only in their own vindication, but, in furtherance of justice, that they were not guilty of the misconduct charged against them.... The only reason for not allowing jurors to separate after a cause has been submitted is to prevent them from being improperly influenced by others; and when, as in this case, it affirmatively appears that during a temporary separation for an innocent purpose the juror has not conversed or held communication with any one on any subject, and could not have been influenced in any manner whatever, the irregularity, if any, should be regarded as not affecting any substantial right, and a new trial should not be granted. Nothing herein conflicts with what is decided in State v. Church (S.D.) 64 N.W. 152. . . . An examination of the entire [Church] opinion will disclose that it is authority for the foregoing rule, and nothing more. The doctrine therein declared is to this effect: Where the separation is such that one or more of the jurors might have been improperly influenced by others, the irregularity must be regarded as presumptively prejudicial, and the burden is cast upon the party seeking to sustain the verdict to show that such influence has not been exercised to the prejudice of the other party.
Id. 71 N.W. at 764-765. Accord, State v. Smith, 56 S.D. 238, 228 N.W. 240 (1929); State v. McCoil, 63 S.D. 649, 263 N.W. 157 (1935).
[892]*892In State v. Steensland, 56 S.D. 534, 229 N.W. 395 (1930), three jurors were separately brought to the sheriff’s office and permitted to inform their respective families by telephone that on account of being on the jury they would be unable to go home. It was shown by affidavits of the jurors that they did not talk about the case. We held that, while this procedure was improper, the showing disspelled any prejudice to the defendant.
On the morning following the overnight separation the court, with counsel participating, conducted an examination under oath of each juror. Based on the jurors’ testimony, the court concluded that the jurors had obeyed its admonition not to discuss the case with anyone and that no prejudice resulted to either party by virtue of the jurors’ separation without supervision.
It is apparent that the separation provided circumstances which make it reasonably appear the jury might have been improperly influenced by others and the irregularity must therefore be regarded as presumptively prejudicial. We further conclude, however, that the burden of showing that no such influence has been exercised to the prejudice of the defendant has been sustained.
Appellant also claims the state’s attorney made prejudicial statements during closing argument. During the voir dire, defendant’s counsel asked the jurors to agree with the proposition that jurors are not to infer anything from defendant’s failure to take the witness stand.
The court instructed the jury:
In this case the law raises no presumption against the defendant, but every presumption of the law is in favor of his innocence. He is not required to prove himself innocent, or put in any evidence at all upon that subject. The fact that the defendant has not testified in this case raises no presumption again him, and you must give no thought to the fact that the defendant did not testify in his own behalf in this case in arriving at your verdict.
In closing argument, defense counsel stated:
Finally, the one I asked you to agree with in my voir dire is the right of the Defendant, and again any Defendant has, not to take the stand. There can be no inference drawn from the fact that he does not. That has no weight whatsoever in your deliberations. So completely disregard that fact in discussing this case in the Jury room.
The state’s attorney then addressed the jury as follows:
Now there has been much said about the Defendant taking the stand. That is an inviolate rule that comments should not be made upon the fact that the Defendant has not taken the stand. But as you recall, that subject has always been raised by the Defendant, not by the State. You didn’t hear me talk about that until the Defendant has brought that up. True, no verdict of guilty should be brought in because the Defendant did not take the stand. That’s true. But having said that, someone was driving that pickup on the night in question. Now — MR. JOHNSON: Your Honor, I would object here. I believe that is clearly in violation of the Court’s instruction about making comments and inferences about the fact that the Defendant did not testify. I realize I had brought that up several different times only to urge the Jury to acknowledge the fact that — of that instruction. I believe this is going further than that.
While the prosecutor’s comments were improvident, they came after counsel for the defendant had clearly focused the jury’s attention on the fact of the defendant’s silence. Thus the prosecutor’s comment on rebuttal added nothing to the impact created by defense counsel. State v. Nachtigall, 296 N.W.2d 530 (S.D.1980). The comment of the state’s attorney was therefore harmless error. SDCL 23A-44-14.4
[893]*893Appellant also contends the evidence was insufficient to support the verdict. Without detailing the evidence, suffice it to say we conclude the reasonable inferences drawn therefrom sustain a rational theory of guilt. State v. Antelope, 304 N.W.2d 115 (S.D.1981); State v. Moves Camp, 286 N.W.2d 333 (S.D.1979). That and other issues presented have been reviewed and found to be without merit.
The judgment is affirmed.
WOLLMAN, C. J., and DUNN, J., concur.
MORGAN and HENDERSON, JJ., dissent.