In this case appellant has filed an able and well prepared motion for rehearing, each ground of which has been carefully examined and we are unable to sustain any of appellant's contentions except that we believe we were in error in not upholding his first contention as set forth in his second bill of exceptions.
It therefore appears that when appellant was introducing his evidence he asked the witness Harris, in view of his knowledge of appellant, whether he would or would not say that appellant was a cautious, prudent man. To this the State objected for various reasons, and we think the question subject to objection. Thereupon the court made the following remark to State's counsel: "Well, you may be right, but it will do so little harm that I believe I will admit the testimony." It will be observed that this remark of the trial court was in direct violation of article 787 C.C.P., which is as follows: "In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceedings previous to the return of a verdict, make any remark calculated to convey to the jury his opinion of the case."
Violations of the injunctions of this article, have been the subject of much discussion by the courts and have given rise to conflicting opinions as to whether this remark or the other, of the trial court was calculated to convey to the jury the judge's opinion of the case on trial.
It is clear that the framers of our law recognized the strategic position occupied by the judge of a trial court and the weight which the jury attach to his words and acts; and in article 736 C.C.P., the judge is forbidden to discuss the facts or use any argument in his charge calculated to arouse the sympathy or excite the passion of the jury; and we also see in article 842 C.C.P., that a judge is forbidden to sum up, discuss or comment on the evidence in granting or refusing a motion for new trial. Article 787 supra is plain, and it is to be regretted that departures from its provisions make difficult the question as to which are, and which are not, reversible errors.
In the McGee case, 37 Tex.Crim. Rep., this court held it was not reversible error for the trial court to say in overruling the objection of the State: "It is not very material, but it may go to the jury." The trial courts were also, in that opinion, admonished of the danger of expressing an opinion in such matters, but the court held that if the offered testimony was immaterial, or slightly *Page 61 material and could have had no appreciable effect on the jury, that this court would not reverse for such comment.
See similar expressions in Huntley v. State, 34 S.W. Rep., 849. But in Simmons v. State, 55 Tex.Crim. Rep., citing the Moore case 33 Tex.Crim. Rep., and ruling on an objection made by defendant which was sustained, accompanied by the following comment of the trial court. "If there had been an objection made at the start, I might have sustained it on the ground that it was immaterial and irrelevant." Mr. Justice Ramsey, rendering the opinion, says: "The rule laid down in the first case quoted (Moore case, supra) ought to be strictly and literally observed; that is, the court ought, without discussion or comment, to rule and either admit or reject proffered testimony. The fact that a statement of the court as to the importance or unimportance of testimony is stated from the bench would often make it no less hurtful than if contained in the written charge. The trial judge is to the jury the Lord's annointed; his language and his conduct have, to them, a special and peculiar weight. Literally, in such matters, his communication should be, yea, yea and nay, nay."
In approving substantially the opinion of Judge Ramsey we would not be understood as abrogating the well settled rule found in many cases, that remarks of trial courts, in particular comments on evidence, are not necessarily reversible error, the rule being that they should not be so considered unless it reasonably appears that injury could have resulted therefrom.
In the instant case, upon more mature reflection upon the effect of the remarks of the court, we are convinced that we were in error in the original opinion in holding that no injury could have resulted from same.
The State had rested its case, and, as disclosed by the statement of facts, the witness Harris was placed upon the stand as appellant's first witness and was asked the question, as above set forth. As stated, the court overruled the State's objection with the statement that "it will do so little harm I believe I will admit the testimony." The average juror very well knows that the court will not admit testimony unless he thinks it to be material, and we think the very admission of this evidence would carry with it to the jury the impression that the court believed it material. Now when the court says "it can do no harm" or "it can do so little harm," there seems to us serious danger that this in the minds of the jury would give rise to the belief that the court was of the opinion that the State's case was so strong or so thoroughly made out, as that the material evidence of the appellant could do little harm. This is more than the expression of the court in the McGee case or in the Huntley case — we think it is more in line with the Simmons' case supra, Chancey v. State, *Page 62 58 Tex.Crim. Rep., the Moore case, 33 Tex.Crim. Rep. and the Bradshaw case, 70 S.W. Rep., 215. There can be no question but that it is a direct comment on the weight of the evidence and we cannot say it was not calculated to convey to the jury the court's opinion of the merits of the case.
The motion for rehearing is therefore granted, and the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.