dissenting: The defendant was entitled to have his motion to dismiss granted since according to the reserved case there was no evidence before the court that he had committed the crime charged. Instead the court interrogated the prosecuting officer and as a result ordered the case reopened and continued for over the weekend until the witness the court had now learned of, would be available. In my opinion the unsolicited intervention by the court after *710the prosecution had rested, designed to generate evidence which would permit a conviction, was impermissible. “[T]he judge was exhibiting a prosecutor’s zeal, inconsistent with that detachment and aloofness which courts have again and again demanded, particularly in criminal trials. Despite every allowance he must not take on the role of partisan; he must not enter the lists .... Prosecution and justice are two quite separate functions in the administration of justice; they must not merge.” United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945) (Learned Hand, J.); Billeci v. United States, 184 F.2d 394 (D.C. Cir 1950); Hunter v. United States, 62 F.2d 217 (5th Cir. 1932).
Transcending the immediate result in this case is the possibility that it will be construed as diminishing the responsibility and independence of district courts. The importance of responsible and independent district courts can hardly be overemphasized since they are the only form of justice encountered by most of our citizens. In criminal cases district courts are not “police courts”; they stand between the State and the defendant and not as partisans of either the State or the defendant. N.H. Court Accreditation Comm’n, Report on the Accreditation of Court Facilities (1973). Their independence is compromised when they assist in the preparation or presentation of the prosecution’s case, either ex parte or in court. ABA Minimum Standards for Criminal Justice, The Function of the Trial Judge § 6.4 (Approved Draft 1972); restated in ABA Minimum Standards for Criminal Justice, The Administration of Criminal Justice (1974).
It has often been said that justice must not only be done but appear to be done “[Jjustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1945) (Frankfurter, J.). The end does not justify the means in a criminal trial, and no person should be convicted by a procedure that would appear unjust to the ordinary person. I am persuaded that an ordinary person in the position of this defendant would feel that the combined prosecution by the prosecutor and the court was unjust. Accordingly, I dissent from the result and opinion of the majority which seals with approval the procedure in this case.