dissenting. I would reverse and remand this case for a new trial because of the trial court’s remarks to appellant’s counsel during the cross-examination of the prosecutrix. It must be remembered that the burden was upon the State to prove to the jury beyond a reasonable doubt that appellant had intercourse with the prosecutrix “by forcible compulsion.”
Mac Chambers, a witness called by the State, testified that he lived near the garage where the alleged rape took place and that on the night of October 31, the defendant asked the witness to take him to Piggley Wiggley. When the witness got outside the defendant got in a car with a white girl and the witness followed the defendant to Piggley Wiggley. Upon arriving at the Piggley Wiggley, the defendant sat in the car and talked to the girl awhile before he got into the witness’ car. The next night at about the same time the appellant and a white girl walked upon the porch where the witness lived. This time at the request of appellant, witness followed appellant to Kroger. Witness described the girl on the second night as smiling when he saw her. Stated that the girl was not scared. Witness also testified that there were a number of stop signs between his house and the Piggley Wiggley and that appellant stopped at each stop sign.
On direct the prosecutrix had testified that upon arriving at a garage the appellant tied her hands behind her back with a rope and pulled my blouse, that 1 was wearing, over my face. On cross-examination the prosecutrix stated appellant started to take off my blouse at first, but I just took it off myself. Thereafter, the cross-examination continued as set out in the majority opinion and culminated with the prosecutrix testifying that she was sitting on the appellant’s lap while nude and with her arms around his neck. At that time the following occurred:
“Mrs. Miller: ‘Your Honor, maybe the prosecutrix would like a few minutes.’
The Court: ‘I beg your pardon?'
Mrs. Miller: ‘Maybe the prosecutrix would like a few minutes to get herself together.'
The Court: ‘Well, you got her this way. Why don’t you go ahead.’ ”
These remarks on the part of the trial court, although not necessarily intended, could be construed as showing some irritation in counsel’s manner of interrogation and that it went beyond the bounds of propriety. In dealing with a remark of a trial court to counsel in McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944), we stated the general principle as follows:
“‘No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.' ‘We are not unaware that many things occur during the trial of a case to fray and irritate the nerves of the presiding judge, and that he is not immune to the natural frailties of humanity, but because of his position he must exercise the greater forbearance and patience.'"
We constantly hold that there is a presumption that every error is prejudicial, unless it is demonstrated otherwise. See Arkansas Highway Comm. v. Jensen, 253 Ark. 795, 489 S.W. 2d 5 (1973), where we stated:
. . The presumption is that error is prejudicial unless it is shown otherwise or manifestly is not...”
The majority’s bald assertion that they “do not construe this remark as ridiculing appellant's counsel” does not show that the court’s demonstrated irritation had no effect in discrediting the testimony elicited on cross-examination. As pointed out in McAlister v. State, supra, a trial judge because of his great influence with the jury: “By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury.” Here I cannot say that the record manifestly shows that the trial court’s expressed irritation did not prejudice either appellant’s conviction or the extent of his punishment. It certainly did not help appellant. Consequently I would reverse for a new trial on this one issue.
For the reasons stated 1 respectfully dissent.