dissenting.
G.S. 1-180 requires the judge to explain the law but give no opinion on the facts. The purpose of the statute is to secure the right of every litigant to have his cause considered by an impartial judge and an unbiased jury. State v. Canipe, 240 N.C. 60, 81 S.E. 2d 173 (1954). The statute is mandatory and a violation of it is prejudicial error. Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522 (1962).
*740The charge in every criminal case ordinarily contains a recapitulation of the State’s evidence and contentions followed by a recapitulation of the defendant’s evidence and contentions. Here, after reviewing the State’s evidence the trial judge said: “The defendants, Robert Baxter and Alveta Baxter, did not offer any evidence as they have the right to do.” The majority awards this defendant a new trial on the ground that the instruction was an incomplete statement of the pertinent rule of law and constituted prejudicial error because the jury may have understood the statement to mean that the failure of the defendant to offer evidence was a circumstance to be considered against him. I respectfully dissent. I would affirm defendant’s conviction on the ground that the instruction complained of was harmless error beyond a reasonable doubt.
The test of harmless error is whether there is a reasonable possibility that the error complained of might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963). It is highly unlikely that the statement by the able trial judge was considered by the jury as anything other than a statement that defendants had offered no evidence and therefore there was nothing for the court to summarize and bring into focus for consideration by the jury. In all events, when considered in the context in which it was used the statement had no prejudicial effect on the result of the trial and was therefore harmless. State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950). While it would have been better, as stated in State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971), to have given no instruction whatever concerning defendants’ failure to testify or offer evidence unless such an instruction is requested by defendant, I perceive nothing in the instruction given which would prejudice a mind of ordinary firmness and intelligence.
For the reasons stated I vote to affirm the decision of the Court of Appeals reversing defendant’s conviction for the manufacture of marijuana and upholding his conviction and sentence for possession with the intent to distribute marijuana.