Opinion
No. 32925.
February 14, 1938.
1. CRIMINAL LAW. Witnesses.
The trial court within limitations, may examine witness to clarify witness' testimony, but must not indicate opinion of court as to value of witness' testimony.
2. CRIMINAL LAW.
The right, if any, of trial court to call and examine witness not introduced by counsel must be exercised without indicating opinion of court as to witness' testimony.
3. CRIMINAL LAW.
In prosecution for selling intoxicating liquor, wherein state witness testified that he bought liquor from accused and that accused used "creolin," a preparation of creosol and resin soap used as a deodorant and disinfectant, to destroy odor of liquor, and second state witness testified he saw first witness in accused's residence, re-examination of second witness by court without such witness being recalled by either state or accused, including statement that what court wished to know was whether there was a container of creolin in accused's residence, was reversible error.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Earle L. Wingo, of Hattiesburg, for appellant.
The purpose of the Legislature in prohibiting comment on the part of a trial judge was manifestly to keep from the jury the question of whether or not the trial judge was interested in the outcome of the case. In the proceedings in the case at bar, however, we find that, regardless of the decisions of our Supreme Court, and irrespective of the plain prohibition as announced in Section 586 of the Code of 1930, the circuit judge, in this case, gave to the jury all evidence of his desire, ambition and determination to, not only supplement evidence of the prosecution, but to produce additional testimony which would insure the conviction of the appellant.
On the question of the right of a defendant to a fair and impartial trial, and wih special reference to the conduct of a trial judge, we submit the following authority which, in our opinion is considerably less prejudicial and less damaging than that which transpired during the trial of the appellant, by reason of the participation on the part of the trial judge in the examination of the state witness, after the state had rested its case.
Collins v. State, 54 So. 665.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Headley v. State, 143 Miss. 532, 108 So. 733, is authority for the general proposition that a trial judge has right to ask "clarifying questions," but the opinion does not indicate the nature of the examination of the witness.
Green v. State, 97 Miss. 834, 53 So. 415; Griffin v. State, 171 Miss. 70, 156 So. 652; Myers v. State, 99 Miss. 263, 54 So. 849; Gray v. State, 90 Miss. 235, 43 So. 289; Fuller v. State, 85 Miss. 199, 37 So. 749.
The foregoing cases are referred to in order that the court may have before it all of the cases decided within recent years upon the same or analogous situations. On these cases, the state submits this proposition without further argument.
The appellant was convicted of selling intoxicating liquor. The state introduced several police officers who searched her residence, but their evidence disclosed nothing indicating that the appellant possessed, or was engaged in selling, intoxicating liquor. The state then introduced a witness named Horn, who said that he had purchased such liquor from the appellant, and then rested its case. The trial judge then asked the district attorney, "Do you want to introduce Mr. Cubley?" to which the attorney answered, "No, sir." The judge then said, "Come around, Mr. Cubley, I want to ask Mr. Cubley some questions." An objection thereto by the appellant's attorney was overruled. The judge answered, saying, "The court holds before it rules on any matter, it desires to ask a question of the witness Cubley, in order to clarify the court's mind . . . Come around Mr. Cubley." Cubley participated in the search of the appellant's residence, and had theretofore been introduced by the state, but his evidence only disclosed that he saw the witness Horn there then. Over repeated objections by the appellant's counsel, the judge then examined Cubley as follows: "All right, Mr. Cubley, did you see any container, or tub or anything in that house? A. Yes, sir. What did it contain? . . . Tell the jury what it was? A. She had a tub of creolin water there on the floor. What was it it contained? A. There was a boiler setting on the table — And it contained what? A. Didn't contain anything. What I am getting at, Mr. Cubley — was there a container of creolin there? A. Oh, yes, sir, there was a tub on the floor with creolin water in it — one of those big old cans. The Court: That's all. Now you can make your record."
Within limitations the trial judge may examine a witness in order to clarify his testimony, but in so doing must not indicate his opinion of the value thereof. It may be, as to which we will not express an opinion, that he may call and examine a witness not introduced by counsel; but if he does, the examination of the witness must not be such as to indicate the judge's opinion of the witness' testimony. In the examination of this witness one question asked him was this: "What I am getting at, Mr. Cubley — was there a container of creolin there?" This clearly indicated to the jury that the trial judge attached importance to the fact that creolin was found in the appellant's residence. Creolin is "a preparation of creosol and resin soap used as a deodorant and disinfectant." Webster's New International Dictionary. The jury could well have understood that the trial judge brought out the evidence for the reason that it corroborated the evidence of the witness Horn, by indicating that the appellant used creolin for the purpose of destroying the odor of intoxicating liquor, and therefore had such liquor in her possession. As bearing more or less hereon, see Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256; Headley v. State, 143 Miss. 532, 108 So. 733; Bumpus v. State, 166 Miss. 276, 144 So. 897; Griffin v. State, 171 Miss. 70, 156 So. 652; Myers v. State, 99 Miss. 263, 54 So. 849.
Reversed and remanded.