The instruction to the jury went beyond permissible comment on the evidence and the testimony and character of witnesses and transgressed the field of legitimate argument ever permitted the prosecuting officer. It is not proper comment for the judge to urge reasons for discrediting witnesses. The comment by the judge must be impartial, else there is danger of recurrence *Page 88 to the vice disclosed in the old State trials of England.
My views are well expressed in Weare v. U.S.,1 Fed. (2d) 617 (C.C.A. 8th Circuit):
"In reading portions of the instructions, it would be difficult to tell whether one were reading the instructions of a court or the argument of a prosecutor. As a sample of their argumentative nature, we quote the following: 'As I recollect it, when these men were put in jail, one of them put in jail that day and the other one the day before, they were searched. Would such things as that match box and that tobacco can escape, the observation of the investigating officer? If he had any sense at all, wouldn't he have found those things? They wouldn't have to go into a man's shoes to determine whether he had a match box on his person. If he had it in his shoe, he would have crushed it. They couldn't get that match box in his shoe. That is my view. Would these things have escaped the searching officer when he searched them before they were put in jail that day? Now, they search them when they put them in jail.'
"Other remarks were made by the court equally objectionable, which it is not necessary to set out. The whole tenor of the instructions was apparently to influence the jury to return a verdict of guilty. It was a palpable attempt to usurp the function of the jury as to fact questions and to impose the will and desire of the court upon it, and to interfere with the independent judgment of the jurors. Under the Constitution one accused of crime is entitled to a determination by a jury of the fact questions involved. The jury can easily be misled by the court. Its members are sensitive to the opinion of the court, and it is not a fair jury trial when the court turns from the legitimate instructions as to the law to argue the facts in favor of the *Page 89 prosecution. The government provides an officer to argue the case to the jury. That is not a part of the court's duty. He is not precluded, of course, from expressing his opinion of the facts, but he is precluded from giving a one-sided charge in the nature of an argument. We do not think the error in this case is cured by the mere statement to the jury that they were not bound by his opinion, and that they should follow their own judgment."
The conviction should be reversed, and a new trial granted.
McDONALD, J., concurred with WIEST, J.