We fail to see that these comments of the presiding justice were erroneous, even standing alone, and they certainly were not erroneous or prejudicial when the whole charge is examined and considered. State v. Jones, 137 Me. 137; 16 A.2d 103; Benner v. Benner, 120 Me. 468; 115 A. 202. There was no "obvious attempt to suggest the honesty of the law enforcement officers, as distinguished from the interest of the respondent" as in State v. Brown, 142 Me. 106; 45 A.2d 442, 445; nor is there a direct or indirect expression of opinion as prohibited by R. S. 1944, Chap. 100, Sec. 105. The province of the jury to pass upon credibility was not interfered with. State v. Smith, 140 Me. 44; 33 A.2d 718. There were no argumentative comparisons, as appear in the cases cited by respondent: Strader v. United States (CCA), 72 F.2d 589; Minner v. United States (CCA), 57 F.2d 506. It does not follow that there is an expression of opinion because interrogatories were addressed to the jury.

Where the question of a fair and impartial trial is in the balance, this court will and should go beyond the legal technicalities that may be required under other circumstances, so that the accused in any criminal case may get that impartial trial which the Constitution guarantees to him. State v. Jones and Howland, 137 Me. 137 at 139; State v. Brown, 142 Me. 16. "Upon such complaint (that the conduct of the judge and certain questions asked by him, in a rape case, were prejudicial and reflected to the jury his own opinion of the guilt of the respondents), the record will always be examined with great care to determine whether the respondents were accorded a fair and impartial trial."

Specifically, exceptions 1, 2, 3, 4, 8, 9, 10 and 11 complain that the presiding justice erred in charging the jury either by the use of language which would prejudice the jury or in using language which implied that he was expressing an opinion contrary to the provisions of R.S. (1944), Chap. 100, Sec. 105. It is possible that certain isolated sentences standing alone might justify that conclusion but the correctness of the charge is to be determined from the whole charge and not isolated sentences. See State v. Benner, 64 Me. 267, 291; State v. Jones et al., 137 Me. 137, 142; 16 A.2d 103. We find no merit in the above exceptions.

His failure to do so is regarded as a waiver of any objection arising from that source. State v. Benner, 64 Me. 267; Grows v. Maine Central R. R. Co., 69 Me. 412; Murchie v. Gates, 78 Me. 300, 4 A. 698; Elwell v. Sullivan, 80 Me. 207, 13 A. 901; State v. Richards, 85 Me. 252, 27 A. 122; State v. Jones et al, 137 Me. 137, 16 A.2d 103. "It does not follow that the judge has expressed an opinion upon the issue because his opinion may be inferred from some allusion which he may make to some obvious and indisputable fact: nor because an inference favorable or unfavorable to the position taken by one of the parties may be drawn from such obvious truth or fact." McLellan v. Wheeler, 70 Me. 285; State v. Jones et al, 137 Me. 137, 16 A.2d 103, supra.

We disagree. At least since 1879 in civil cases, McLellan v. Wheeler, 70 Me. 285, 287 (1879), and since 1887 in criminal cases, State v. Day, 79 Me. 120, 125, 8 A. 544 (1887), the statute in question has been interpreted to apply only to controverted facts.Accord State v. Hudon, 142 Me. 337, 349, 52 A.2d 520, 526 (1947) (quoting McLellan, 70 Me. at 287); State v. Jones, 137 Me. 137, 141, 16 A.2d 103, 105 (1940) (quoting McLellan, 70 Me. at 287). 14 M.R.S.A. § 1105 provides:

Although no prior Maine cases have specifically approved a reading of trial testimony initiated by the presiding justice, the cases make clear that so long as the justice maintains a position of neutrality, there is broad discretion in selecting those portions of the record to be read to the jury. See, e.g., State v. Bachelder, 403 A.2d 754 (Me. 1979); State v. Hudson, 325 A.2d 56 (Me. 1974); State v. Jones, 137 Me. 137, 16 A.2d 103 (1940). In Commonwealth v. Jones, 476 Pa. 597, 383 A.2d 523, 524 (1978), the Supreme Court of Pennsylvania held that there was no error in giving the jury additional instructions at 12:25 a.m., even though they had made no request for them and the jury had not indicated it was deadlocked.

It is most probable that the jury, mindful of their own desire to have an answer to that very question which they themselves would have asked of the witness if allowed to do so, would not characterize the situation as an expression of opinion by the Court respecting Cindy's believability. See State v. Rowe, Me., 238 A.2d 217 (1968); State v. Jones, 137 Me. 137, 16 A.2d 103 (1940); State v. Mathews, 115 Me. 84, 97 A. 824 (1916); State v. Lambert, 104 Me. 394, 71 A. 1092 (1908). Insofar as the second incident is concerned, we find that the Justice below could have easily explained his remark if requested, so that no possible prejudice could have resulted to the defendant.

The charge is, therefore, a general statement of the claims or theories of both parties, as indicated by the evidence, without expressing an opinion as to the correctness of any claim or theory. R. S. 1944, Chap. 100, Sec. 105; State v. Jones, 137 Me. 137. "The correctness of a charge is not to be determined from isolated statements extracted from it without reference to their connection with what precedes or follows."

Nor can the statement complained of in this exception be construed as an expression of opinion of the court. Calling attention to the existence or non-existence of evidence is not exceptionable as an expression of opinion ( State v. Means et al., 95 Me. 364, 50 A. 30; Coombs v. Mason, 97 Me. 270, 54 A. 728) even although an inference may be drawn from an allusion to some obvious and indisputable fact ( State v. Lambert, 104 Me. 394, 400, 71 A. 1092; State v. Jones et al., 137 Me. 137, 16 A.2d 103). There is no merit in this exception.