(dissenting):
I concur fully in all the opinion of Judge Winter herein, except for the finding that the trial court committed error in calling as court’s witnesses Fred Cassity and his wife.
While the opinion freely concedes that all the authorities affirm unequivocally the right of the trial judge to call as a court witness any available person or persons possessing relevant testimony, especially if the government or the defendant is unwilling or hesitant to call the person as a witness, it would justify departure from that rule in this case for two reasons, neither of which finds support either in the authorities or, I respectfully suggest, in reason. The first reason for departing from the rule is that the trial judge assumed “the role of prosecutor and [undertook] to produce evidence necessary to overcome the defendant’s presumption of innocence.” Certainly, the opinion cannot mean that by merely calling a person as a court’s witness the trial judge assumes the improper “role of prosecutor.” If this were true, the trial judge, would be prohibited in all instances from calling a person as a court witness. It is the added qualification that the “evidence of the witnesses” is necessary to the Government’s case and makes it impermissible under this reasoning for the court to call the witnesses as court witnesses.
I, however, fail to see why the importance of the witness’ testimony is determinative of the right of the trial judge to call him or her as a witness. The very importance of the testimony provides its own justification for the action of the trial judge. There is no real warrant for the trial court to call as a court’s witness a person whose testimony lacks special relevancy; the power should not be exercised in order merely to add to the record evidence that at best is peripherally pertinent. But when, as here, there are persons whose testimony, if believed by the jury, could either lead to the defendant’s conviction or could go far to absolve the defendant, the trial judge has both a right and a duty, if the Government refused to call the persons, to have them sworn as court witnesses. The trial judge does not abandon his role of required impartiality in the case merely by calling as a court witness one whose testimony is vital but whom the Government or the defendant, for some reason, is reluctant to call. This, I am sure, is a rule that the majority would accept if the witness could supply an essential link in the defense. The same rule should follow when the witness is vital to the Government’s case. After all, the trial judge has a responsibility to society and the public. Courts must never forget that the function of the criminal court is as much to shield “the public from criminal behavior” as it is to protect the innocent defendant from undeserved punishment. Cf., United States Ex Rel. Selikoff v. Com. of Corr. (2d Cir. 1975) 524 F.2d 650, 654. Unfortunately, this double obligation is too often forgotten and too frequently courts conceive of their function simply as the guardians of a defendant’s rights and not as the protector of the public itself from crime. I do not conceive it any more the duty of a trial judge to permit a guilty defendant to escape because of the reluctance of a prosecutor to call a material witness available to him than to stand idly by and let an innocent defendant be con*220victed because of the hesitancy of defendant’s counsel to call the witness.
The second reason assigned in the opinion is that the trial judge did not advise the jury “why the witnesses were called as court witnesses” and that they “were entitled to no greater credibility because they had been called by the court.” Perhaps in the ordinary case, the rule suggested in the opinion is the proper one. There was no necessity for such advice in this case and the failure to give it, if error, was harmless beyond a reasonable doubt. The prosecutor stated in open court that he was unwilling to call the witnesses because he would not vouch for their credibility. The Government itself thereby cast a heavy shadow over the reliability of their testimony. Anything that the trial judge could have added after that would have been superfluous.
I submit the action of the trial judge was entirely proper. He did no more than his duty.