(dissenting).
I respectfully dissent. I concur with the majority in disposing all points of error raised except in my opinion the court’s comments constituted prejudicial error.
I cannot agree with the majority that the abstract charge to the jury clears the mind of the juror of the lower court’s prejudicial comment. This reasoning is used in many cases, but in my opinion fails to challenge the evil of the situation and in fact, invites continued abuse.
Today we are constantly concerned the powers of government do not encroach upon the fundamental liberties of the individual. It is almost axiomatic as government grows there exists a lesser concern for these rights. The application of the Bill of Rights to the Fourteenth Amendment is reassuring to say the least. The courts above all must remain the guardians and watchdog of these individual rights. We are properly concerned with the early stages of arrest and arraignment,1 freedom from unreasonable searches and seizures,2 the right to remain silent and not become a witness against one’s self,3 the right to be represented by counsel,4 the right to have a jury fairly selected,5 to have an impartial forum for the trial,6 and even with fair pre-trial comment by the press.7 The concept of “fair trial” is always paramount.
It seems to me all of this is naught if the trial judge becomes the prosecutor by unfair comment in the trial itself. This is cognate to a doctor carefully taking precautions „o innoculate a person to prevent a disease and once this being assured shooting the patient in the back. The courts above all must practice what we command others to do.
The influence of a trial judge upon an average juror needs no further discussion. Every trial lawyer is properly over-sensitive to the trial court’s unwarranted intrusion into an adversary proceeding as an advocate. One argumentative comment (even though based on the evidence) by the court can overcome all other efforts to guarantee a defendant a fair trial. It can erase a week’s testimony or hours of advocacy skill. Such comment can pervade the entire atmosphere of fairness so as to *1004deprive a defendant of due process of law. It is a subterfuge to say a general exculpatory charge can remove the prejudice. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946). This court has held that if a trial judge comments on one side of the evidence he should do so on the other side. Stoneking v. United States, 232 F.2d 385 (8 Cir. 1956); Boatright v. United States, 105 F.2d 737 (8 Cir. 1939).8
In the present case the court instructed upon entrapment, but his comments were tantamount to removing consideration of this issue from the jury. This clearly was prejudicial error. To state that it is not minimizes the trial judge’s role as “governor” of the case and overlooks the profound respect the judge properly commands from a jury. The court made the following comments:
“Now, members of the jury, it is my recollection of the testimony that a fixed price8 9 was prescribed by this defendant for those ducks and those geese. There is evidence that you might take into consideration in determining whether this was an act of whether he was entrapped or whether or not he had given thought to the matter before selling, if he knew what the price was, the going price for ducks and geese in that area.
“There is another matter in the ease, it seems to me, that should be brought to the attention of the jury, that is the testimony of Mr. Drummond. That testimony was produced here in rebuttal solely for the purpose of rebutting the statement of the defendant that he had never talked to anybody else concerning the sale of ducks prior to the time he talked to the Witness Miller, if he did talk to him.
“These cases cannot all be harmonized, but we think the line of demarcation between what a court may say to the jury in a criminal case in expressing his opinion on the facts, and what he may not say, is to be drawn between mere expression of opinion not partaking of such argumentative nature as to amount to advocacy, leaving to the jury absolute freedom to determine the facts, and such discussion as amounts to an argument and makes the court in fact an advocate against the defendant. A trial judge is not merely a moderator or umpire; neither is he an advocate.” 18 F.2d at 52.
“Another fact that the jury might take into consideration in determining whether or not this was entrapment was that the agent from Illinois, the undercover agent, and the other agent. from South Missouri converged upon this particular area at the same time and came into the tavern on the same evening with the same purpose in mind. What led them there? You are entitled to take into consideration your common experiences in the affairs of life in determining what this evidence is worth, what it means to you. So they were there and why were they there in this particular tavern for the purpose of seeking to buy wild ducks and geese.
“Now let’s consider for a moment the evidence with respect to the knowledge of this defendant as to whether it would be a violation of the law to sell wild ducks and wild geese, that has been brought to your attention by counsel, that the question was mentioned several times that the game wardens were in the area, the area was hot, they were there and therefore they have to be careful, and he was keeping them in Missouri because he knew how to operate over in Missouri. Those are the facts and circumstances which it seems to me the jury might take into consideration in determining the question of the wilfulness, know*1005ingly, and so forth that I have used in these charges here in selling these wild ducks and these wild geese, whether he was lured into it or whether he did it for the money and because he was asked to sell it and he had the willingness to do it. Now, those are things that pertain to the first three counts of this indictment.
“Now, members of the jury, I am going to express an opinion to you about the fourth count of this indictment. Whatever your finding may be with respect to the guilt or the innocence of the defendant under the first three counts of this indictment, that is, the sale of wild ducks and wild geese, this pertains to the charge of possession. Can you say from this evidence that the law of entrapment, believing and insisting that he did it because he was entrapped, applies to the possession, was he entrapped into providing and possessing 31 wild ducks and 15 wild geese, was he entrapped in doing that. That’s for you to say, it’s not for me to say. But if you find and believe that he knowingly, willfully, and unlawfully did it, he is guilty and if he had them it was unlawful, he had no right to have that many wild ducks and wild geese. Did he know he had them and was it done willfully. Under the law as I have read it to you, he had no right to have those.”
It is difficult to believe this is not the verbatim argument made by the prosecutor on behalf of the government.
The majority points out that the evidence of the defendant’s guilt was substantial. This is a poor test for a fair trial. This also substitutes the court’s judgment for the jury.10 It clearly usurps the jury’s fact-finding power. Why, the jury, if the trial judge or the appellate court can determine guilt on the basis of sufficiency of evidence? When the trial judge’s comments assume the stature of argument of the government, in my opinion it denies the defendant “effective assistance of counsel”. It is rhetorical to ask who has the most persuasion with the jury: the trial judge or the defendant’s attorney? Why must we even pose the question?
The clarity of the evidence in this case does make the trial court’s comments completely unnecessary and baffling to me. I would reverse for a fair trial with fair instructions and fair comments.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
. Rabinowitz et al. v. United States, 366 F.2d 34 (5th Cir.) (decided July 20, 1966).
. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1960).
. Estes v. State of Texas, 381 U.S. 532, 86 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.
. In Cook v. United States, 18 F.2d 50 (8 Cir. 1927), the Court found error where the judge commented on the veracity of one of the witnesses and stated that, “I am of the opinion that this conspiracy existed as charged in this indictment from this evidence introduced * * * ” The judge even cautioned the jury that this was only his opinion. The Court said:
. This is the government’s version and is denied by the defendant.
. See Bihn v. United States, 328 U.S. 633, 66 S.Ct. 1172, 90 L.Ed. 1485 (1946). The trial court there said to the jury, “Did she steal them? Who did if she didn’t? You are to decide that.”
The Supreme Court held that this was error. The Court said, “Nor is it enough for us to conclude that guilt may be deduced from the whole record. Such a course would lead to serious intrusions on the historic functions of the jury under our system of government.” 328 U.S. at 638, 66 S.Ct. at 1175.