No serious objection is perceived to either count of the indictment. Both counts charge defendant with the statutory crime of embezzlement, and are sufficiently formal under the statute. The fiduciary relation between defendant and the prosecuting witness is stated so it can be readily understood, and under the statute of this State that is all that is required. It follows a general verdict of guilty would be correct if the evidence warranted it.
The facts implicating the accused arise out of a very questionable transaction between the prosecuting witness and her legal adviser. Indeed, the transaction, so far as they are concerned, is confessedly illegal. On this account the evidence given for the People was not of a very satisfactory character. To rebut the case made by the prosecution, defendant offered testimony to show he had bought the property of the prosecuting witness,—the proceeds of the sale of which he was accused of embezzling; that the purchase was in good faith, and that he had paid for the same with money. On examination it is seen the testimony offered and given did tend to establish this defence, but what weight should be given to it was, of course, for the jury to determine. Had the jury been left free to decide that question, their verdict, no doubt, would have been regarded as conclusive; but after the introduction of the evidence on this branch'of the case, the court remarked, in the presence and hearing of the jury, “I am not satisfied with this,—let the defendant take the stand. ” This remark was clearly improper, and was calculated to prejudice the defence the accused was attempting to make. Whether the court was. satisfied or not, was not a matter proper to be communicated to the jury. They should have been left free to consider the evidence given by both parties, without any expression of opinion from the court. Undoubtedly the court has the discretionary right,—the exercise of which may tend to elicit the truth,—to direct that witnesses shall be recalled for further examination, or that other witnesses may be called to the stand to be examined; but the court ought not to state to the jury that it is or is not satisfied with any particular portion of the evidence. Expressions of that character are calculated to have great weight, and if the jury are to be controlled in that way, their services might as well be dispensed with in the first instance. It will also be seen, on examination, that the questions propounded to defendant by the court when he was compelled to take the stand again, are not altogether free from objection, although not seriously objectionable. -The impression they seem to make on the mind is, that they call rather for the thoughts of defendant than for anything he said or did. It must be understood the defence was made in good faith. The testimony relied on to establish it was given under the sanction of an oath. The examination of defendant by the court was, in some degree at least, calculated to cast suspicion upon it, and it could not be otherwise than prejudicial to the defence insisted upon.
On account of the errors indicated, the judgment will be reversed and the cause remanded, that tire accused may have a new trial.
Judgment reversed.