Id. at 711-12, 551 P.2d at 1347-48. Similarly, a judicial comment was deemed reversible error in State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931). In that case, the defendant, charged with murder in the first degree, claimed to have acted in self-defense and had produced evidence that the deceased was quarrelsome and dangerous. Some of the State's rebuttal witnesses testified that they had never heard the deceased's reputation questioned.
State v. Rutten, supra; State v. Linebarger, 71 Idaho 255, 232 P.2d 669 (1951); State v. Miller, 60 Idaho 79, 88 P.2d 526 (1939); Bell, Handbook of Evidence for the Idaho Lawyer (2d ed. 1972), pp. 10-11. Remarks which are prejudicial are those which constitute comment on the weight of the evidence, State v. Polson, supra; State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931); Kinzell v. Chicago, etc., Ry. Co., 33 Idaho 1, 190 P. 255 (1920); or indicate an opinion of the court as to the guilt or innocence of the defendant, State v. Polson, supra; State v. Brewer, 73 Idaho 191, 249 P.2d 189 (1952); State v. Rutten, supra. As this court stated in State v. Polson,
"Rev.Codes, sec. 8070 [ 19-2819] admonishes this court: `After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.' And, again, Rev.Codes, sec. 8236 [ 19-3702]: `Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.' The substance of these statutory provisions [is] that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon the evidence no other verdict could properly have been found." In the case of State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931), a dissenting opinion by Budge restated the law: "* * * This court has repeatedly held that a new trial ought never to be allowed notwithstanding some mistake or even misdirection by the judge, provided the reviewing court is satisfied that justice has been done and that, upon the evidence, no other verdict could properly have been found.
(Accord, State v. Owen (1953) 73 Idaho 394 [ 253 P.2d 203, 212 [11]].) Specifically spelling out its application to the issue now before us, the same court reasoned in State v. Ward (1931) 51 Idaho 68 [ 1 P.2d 620, 622 [6]] that "the action of the jury in finding appellant guilty of murder in the first degree, though instructed as to the elements of murder in the second degree, as an included offense, removed any question of prejudice with regard to the instructions on manslaughter, since, having found the appellant guilty of the greater offense, it is evident that they did not consider the appellant guilty of any lesser offense."
Trial courts should make no remarks or comments that would tend to prejudice any party litigant on the trial. State v. Taylor, 7 Idaho 134, 61 P. 288; State v. Ward, 51 Idaho 68, 1 P.2d 620; State v. Freitag, 53 Idaho 726, 27 P.2d 68; State v. Miller, 60 Idaho 79, 88 P.2d 526. Reasonable cause to believe that accused has committed a felony is the test of the officer's right to arrest under this provision.
Trial court should make no remark or comment which tends to prejudice a party in a trial. Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; State v. Ward, 51 Idaho 68, 1 P.2d 620. The trial court in ruling on objections should refrain from comment or statement concerning the evidence or the weight to be given to such evidence.
( Samish v. Superior Court, (Cal.) 83 P.2d 305; Collette v. Sarrasin, 184 Cal. 2, 193 P. 571; Moran v. Thurman, 127 Kans. 688, 275 P. 160; Mission Film Corp. v. Chadwick Pictures Corp., 207 Cal. 386, 278 P. 855.) The testimony of a deceased witness, given on a former trial, may be read in evidence at a subsequent trial between the same parties in the same case. ( State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Ward, 51 Idaho 68, 1 P.2d 620; State v. Boyd, (Kans.) 38 P.2d 665; State v. Pierson, (Mo.) 85 S.W.2d 48.)
"Not to establish the truth of such reports, but primarily to test the credibility of the [character] witness and the weight of his evidence." State v. Brown, 53 Idaho 576, at 589, 26 P.2d 131 (1933); State v. Ward, 51 Idaho 68, 1 P.2d 620 (1931). The rule has been criticized, but still is widely accepted.
"* * * However, the weight of authority would seem to be that when it appears that the witnesses who testified at a former trial are beyond the jurisdiction of the court, and the evidence is competent and between the same parties, involving the same issues, and proper diligence to secure their attendance is shown, as in this case, such evidence is admissible, the reason for the rule being that it is the best evidence which can be produced. * *" This same rule was applied in State v. Ward, 51 Idaho 68, 1 P.2d 620, in which case the whereabouts of the witness was unknown. In State v. Johnston, 62 Idaho 601, 113 P.2d 809, the witness had died between the dates of the first and second trial, and in affirming the admission of the questioned evidence it was stated, "The testimony of a deceased witness, given at a former trial, may be read as evidence at a subsequent trial between the same parties and involving the same issues."
In determining whether the remarks of a trial judge are prejudicial this Court in State v. Polson, 81 Idaho 147, 339 P.2d 510, 519, stated: "The true tests, to determine if the remarks of a trial judge are prejudicial, are whether those remarks constitute comment on the weight of the evidence, State v. Ward, 51 Idaho 68, 1 P.2d 620; * * * or tend to ridicule counsel or reflect upon his conduct in handling the case, State v. Rutten, 73 Idaho 25, 245 P.2d 778; or on the other hand, whether the remarks and conduct of the trial judge are intended only to make points clear or elucidate the matter under consideration, State v. Neil, 58 Idaho 359, 74 P.2d 586." In Cardoza v. Cardoza, 76 Idaho 347, 282 P.2d 475, 476, the rule is stated, amply supported by authorities: