(dissenting.)
I vigorously dissent from that portion of the majority opinion which states that the remark by the trial judge “You can try that on appeal” could have been cured by an instruction to the jury. This statement was made during the guilt/innocence stage of the trial. Furthermore, I conclude that the “instruction” given here could only have compounded the injury, informing the jury that as far as finding the appellant guilty it was “strictly” up to them.
The only reasonable interpretation which can be placed on the judge’s statement is *213that, at least in his mind, the guilt of the appellant had already been firmly established as of that point in the trial, and his only remedy lay in an appeal to this Court. Now this Court denies him that remedy, also. I am bewildered by the failure of this Court to recognize this as error. How much more flagrant a remark will this Court require before labeling it a comment on the weight of the evidence? My hope that the present mood of the Court is short-lived will serve as little consolation to the appellant in this cause.
Also, the two cases cited by the majority concern jury argument and are not in point.
I vigorously dissent and would reverse and remand this cause.