(concurring and dissenting).
I am in full accord with the disposition made of the last three questions discussed, but disagree with the decision of the first question. I would overrule all exceptions and affirm the judgment of conviction.
It is held in the leading opinion that the examination by the trial Judge of the witness Mrs. Emma Cash constitutes reversible error because (1) he elicited hearsay testimony, and (2) he exceeded the limitations imposed upon a trial Judge and asked questions calculated to influence the jury against appellant.
Neither in the exception relating to this question nor in appellant’s brief do I find any complaint that there was prejudicial error in admitting hearsay testimony. Appellant’s contention is, quoting from his exception, that “the Presiding Judge invaded the province of the Solicitor, and, by this (his) questions and his recalling of the witness to the stand after she had been dismissed, he accentuated the testimony elicited by the Court and cause (caused) undue emphasis to be laid thereupon.” But even if the question of hearsay testimony were properly before us, there are two reasons why it should not be sustained:
(1) As soon as the objectionable nature of this testimony was brought to the attention of the trial Judge, he struck it out and instructed the jury to disregard it. It is suggested that it was impossible to erase this testimony from the minds of the jury. But “if appellant’s counsel felt aggrieved, or that the rulings of the Court were inadequate to protect the rights of the defendant, then a motion for a mistrial should have been made.” State v. Warren, 207 S. C. 126, 35 S. E. (2d) 38, 41. Also, see State v. Anderson, 181 S. C. 527, 188 S. E. 186.
(2) Several witnesses testified without objection that Arbutus, the sister of the prosecuting witness, was crying. *310Indeed, that fact seems to be practically undisputed. On direct examination, Miss Lillian Stephens, a witness for appellant, testified as follows:
“Q. Now, after they got back into the yard what happened ? A. Arbutus came around the house snubbing.
“Q. You mean snubbing, she was crying? A. Putting on.
“Q. Had she seen Lillie Sue at that time? A. No, sir.
“Q. Now then what did Arbutus do at that time? A. She met Lillie Sue and Gene.
“Q. Did you hear a conversation between Lillie Sue and Arbutus in the presence of Gene? A. Yes, sir.
“Q. What if anything did Lillie Sue say? What did— A. Lillie Sue said, ‘Why don’t you shut your damn mouth. There ain’t nothing wrong, and he ain’t bothered me.’
“Q. What did they do after that? Where did they go then? A. They went back around the house and left.”
Turning now to the question of whether, apart from the matter of eliciting hearsay testimony, the examination was improper, the duty and limitations of a trial Judge in this respect are stated by Mr. Justice Hydrick in State v. Anderson, 85 S. C. 229, 67 S. E. 237, 238, as follows:
“A grave responsibility rests upon a trial judge. It is his duty to see to it that justice be done in every case, if it can be done according to law; and, if he thinks that the attorney for either party, either from inadvertence or any other cause, has failed to ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course, he should do so in a fair and impartial manner, and should not by the form or manner of his questions express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence.”
The subject is exhaustively annotated in 84 A. L. R., beginning on page 1172, where a number of South Carolina cases are reviewed.
*311I do not think the trial Judge in the instant case transcended the limitations stated in the foregoing rule. His examination of the witness did not indicate to the jury any opinion as to the defendant’s guilt or as to the weight or sufficiency of the evidence. He was merely seeking to elicit information relevant to the decision of the issue' on trial, which he evidently thought had not been sufficiently brought out by counsel.
In the following cases it was held that the Court’s examination did not constitute prejudicial error, although in each of them the trial Judge went much farther than did the Judge in the instant case: State v. Atkinson, 33 S. C. 100, 11 S. E. 693; State v. Jackson, 87 S. C. 407, 69 S. E. 883 ; State v. Hyde, 90 S. C. 296, 73 S. E. 180; State v. Mitchum, 150 S. C. 341, 148 S. E. 184.
Finally, it is said that the trial Judge by the use of the word “difficulty” in several of his questions might have conveyed an impression to the jury that he was of the opinion that there had been at least some difficulty or indecorous behavior on the part of appellant. While the word used was not an apt one, it seems to me that the majority opinion places entirely too strained a construction upon the language used.
Stukes, J., concurs.