concurring specially. Irrespective of the divergent views of my colleagues on the question of identity, I am firm in the opinion that the judgment refusing a new trial should be reversed on account of unjustifiable influence on the part of the court, and of my conviction that the remarks of the judge tended to unduly influence the juror who was in the minority. I consider that the *165verdict upon the facts should be made by the jury without the assistance of the court, and’ that the judge should never inquire as to how the jurors stand numerically in their balloting, or other consideration of the case which has been submitted to them. It is as far as a judge can properly go to inquire of the jury as to whether there is any likelihood that they will reach a verdict; and in case there is any misunderstanding or confusion in regard to the law, it is his duty to instruct them. It is very plain to me that to say to the jury that the one man usually comes to the eleven would tend to impress the one recalcitrant juror with the idea that he stood low in the opinion of the court, and was perhaps an obstructionist to the cause of justice, and, as well remarked by the Chief Judge, this defect would not be cured by what followed in this case, because to say that the one might be more conscientious than the eleven might be received by the juror as ironical rather than apologetic.