I concur in the result, but not in all that is said without some explanation. I refer to that paragraph in the opinion relating' to the established Federal practice in jury trials concerning the court’s authority, and particularly the statement, “and even giving opinions as to the merits of the case, when it is exercised only in exceptional cases and it is made clear that the court’s opinion must give way to- the jury’s on matters of fact.” Assuming that an “opinion upon the merits” has reference to the ultimate issue to be presented to the jury, my conviction to the contrary, is of such a nature I feel obliged to record my position. In doing so I recognize that the weight of authority in courts of inferior jurisdiction sustains the proposition and it is a matter of sincere regret that after much thought I am unable to reconcile my views with those of Judge Evans and the numerous other jurists who have expressed themselves to the same effect. A study, however, of the various opinions of the Supreme Court leads me to believe, as I shall attempt to point out, that it is a very dubious question as to whether that court has given its approval, and I am unwilling to go further in recognition of the principle than is there required.
The Sixth Amendment of the Constitution, U.S.C.A. Const. Amend. 6, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury by the state and district * * To me the expression of an opinion by the trial judge upon the merits of the case, and upon the issue which the jury is to determine is plainly an abridgement of that right, and the damage can not be overcome by admonishing the jury that they are not bound by it, but notwithstanding such opinion, it is their *748duty to form .their own opinion from the facts and law in the case. This is especially true in a criminal case where the Judge expresses his opinion that the defendant is guilty of the offense charged. To my mind such procedure is productive of the following situation: Government’s counsel says to the jury, “The evidence presented proves the defendant’s guilt”; Defendant’s counsel says, “The evidence is insufficient to establish such guilt,” and the Judge says, “My opinion coincides with that of the Government. I likewise give it to you as my opinion that he is guilty.” How any defendant could have a fair and impartial trial after such a proceeding is beyond my ability to comprehend. Under such circumstances the right of trial by jury becomes an idle and useless ceremony. The verdict is not their independent judgment but represents a judgment altered and modified to conform to the court’s desire in the matter. But it is said this power must only be exercised in “exceptional cases.” Why confine it to “exceptional cases”? Who is to determine the “exceptional case” and if its use'in such cases is wholesome, why would it not be equally so in all cases ?
Upon an expression by the court of its opinion as to the issue which the jury is to determine, the judicial lantern so aptly described in the opinion immediately ceases to be such and becomes a beacon light, so dazzling and blinding that there is little, if any, opportunity for the jury to' follow any road except that shown by this guiding light. The danger of the exercise of such power and the difficulty confronting an appellant tribunal where it has been used is illustrated in the case now before us. I join in the opinion of reversal for the reason the remarks of the trial court were such, in my judgment, as to preclude a fair and impartial trial, and yet to my mind such remarks were far less damaging than if the court had expressed an opinion that the defendants were guilty.
The latest Supreme Court case relied upon as authority for the power of the Judge to express an opinion is that of United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, from which a quotation is found in the opinion. In order to ascertain just what the court held in this respect, however, it seems essential to quote more than that found in the opinion. On page 394, 54 S.Ct. on page 225, it is said:
"Although the power of the judge to express an opinion as to the guilt of the defendant exists, it should be exercised cautiously and only in exceptional cases. Such an expression of opinion was held not to warrant a reversal where, upon the undisputed and admitted facts, the defendant’s voluntary conduct amounted to the commission of the crime defined by the statute. Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185. The present, however, is not such a case, unless the word ‘willfully,’ used in the sections upon which the indictment was founded, means no more than voluntarily.”
It will be noted that the only authority cited is the Horning Case, and there the court charged the jury (page 138, 41 S.Ct. page 54):
“ * * * that in a criminal case the Court could not peremptorily instruct them to find the defendant guilty but that if the law permitted he would. The Court added that a failure to bring in a verdict could only arise from a flagrant disregard of the evidence, the law, and their obligation as jurors. On an exception being taken the judge repeated that he could not tell them in so many words to find the defendant guilty but that what he said amounted to that; * *
The court on the same page, in discussing this charge, said:
“The facts were not in dispute, and what he did was to say so and to lay down the law applicable to them. In such a case obviously the function of the jury if they do their duty is little more than formal. The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found, and he can do the same none the less when the facts are agreed. * * * If the defendant suffered any wrong it was purely formal since, as we have said, on the facts admitted there was no doubt of his guilt.”
It will' be noted there was no dispute as to the facts in the case and the court’s charge was the equivalent of a statement of law. In other words, with no issue of fact presented, it was a question of law as to whether the agreed facts brought the defendant within the statute alleged to have been violated. While the court affirmed the conviction and thus approved the procedure, it is interesting to note that four of the Justices dissented. Thus, the words “and only in exceptional cases” referred to *749in the quotation in the Murdock Case, should, in my opinion, he confined to cases where the facts are agreed upon, or at any rate, are not in dispute. This view, I think, is strengthened by the last sentence in the quotation from the Murdock Case in which the court distinguishes it from the Horning Case on the ground “the present, however, is not such a case,” meaning that the facts are neither admitted nor undisputed. It is also important to note that a reversal by this court of the judgment of conviction in the Murdock Case was affirmed by the Supreme Court with a holding of reversible error on account of the charge of the Trial Judge in which he expressed an opinion “that the Government has sustained the burden cast upon it by the law and has proved that this defendant is guilty in manner and form as charged beyond a reasonable doubt.” How can there be any difference in principle in an expression by the Trial Judge to the effect that the defendant is guilty beyond a reasonable doubt, or merely that he is guilty?
In Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (cited in the opinion) the court on page 470, 53 S.Ct. on page 699, made this very signficant and important statement:
“The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided.’ ”
In this case the court was considering the comment made by the trial court upon the testimony of the defendant. As will be noted, the court emphasizes that such comment “should be so given as not to mislead, and especially that it should not be one-sided.” It would seem paradoxical to preclude a court from making “one-sided” comment upon the evidence and at the same time permit it to express an opinion upon what is fundamentally a jury question and which, from its very nature, could not be otherwise than “one-sided.”
So, it is my conclusion that the Supreme Court has not approved the right of a Trial Judge in a jury case to express an opinion upon the ultimate issue to be decided by the jury, except in the particular situation wherein the facts are not in dispute, and in my opinion the rule should be thus limited.
TREANOR, Circuit Judge, concurs in the reversal of the judgment of the District Court and joins in the views expressed by Judge MAJOR in his concurring opinion.