(dissenting in part). I concur in that portion of the majority opinion concerning the indictment. As to the other portion, dealing with comments in the charge, I find myself unable to agree.
An outstanding feature of the practice in federal courts is to permit the court to “comment” upon the evidence. In my judgment, that right, and often duty, is an efficient method of securing justice and should be carefully preserved. “Comment” is not confined to mere statement of the evidence. The judge is not merely a memory aid to the jury. He is, in a sense, an adviser. He may express his opinion as to the evidence. The jury is not bound by his views and should be clearly informed that they are not but he has the right to express such views and they may consider them for what they deem them to be worth. From him comes the only disinterested, impartial, experienced help that the jury can expect in the trial of a ease.
In the present case, there is no proper assignment of this error and, the accused being clearly guilty under the evidence, justice is not promoted by considering this point. However, if the assignment were sufficient, the court clearly and repeatedly cautioned the jury that they were not bound by his views, but must determine the ease upon their own conception of the evidence.
To my mind, the record affirmatively shows the jury were not unduly influenced by any comments made by the court. That they carefully considered the evidence and determined the result for themselves is shown by the circumstances that, after some consideration of the case, they returned and asked that certain designated parts of the testimony, about which they were in doubt or difference, be read to them. This was done without com-; ment of any kind. .
I think the judgment should be affirmed.