Dissenting Opinion
SEILER, Judge.I respectfully dissent, because I believe the remarks made by the trial court the day before the trial started, upon revoking defendant’s bond, overheard by several jurors, giving as the reason therefor that defendant was unreliable and the bond was revoked in order to be sure defendant would appear for the trial, constituted reversible error. “ * * * [T]he court must always maintain an absolute impartiality in any trial, both in its remarks and in its conduct generally * * State v. Sanders (Mo.Sup.) 360 S.W.2d 722, 726. “A judge must not say anything that can be construed by the jury to the prejudice of a defendant. * * * ” State v. Castino (Mo.Sup.) 264 S.W.2d 372, 375. “ * * * [A] trial judge should avoid any indication of feeling against the prisoner * * * ”, State v. Jones (Mo.Sup.) 197 S.W. 156, 158.
I do not believe the error was cured by the statement of the jurors that they were not prejudiced by the remarks and that they would give the defendant a fair trial. As said in State v. Wright, 161 Mo.App. 597, 144 S.W. 175, 178, “The question is whether the remarks of the court were such as to prejudice defendant in the minds of ordinary men in the situation of the jury, not whether or not this particular group of men believed they were not influenced against the object of the criticism”. It is often said in civil cases that a prospective juror is not the judge of his qualifications. The same is no less true in a criminal case. It is difficult to see how the remarks of the court could not have prejudiced defendant in the minds of the prospective jurors (particularly in a case where defendant was charged with breaking and escaping from jail) and for this error I would reverse the judgment and remand the cause for a new trial.