The opinion
PETERS, J.
— I dissent. In my opinion the record in this ease demonstrates that the trial judge aligned himself with the prosecution by assuming the role of prosecutor, and clearly indicated to the jury his disbelief in the main defense of the defendant. The two witnesses were constantly interrupted by the trial judge, who then exhaustively, argumentatively and repetitiously examined them almost to the complete exclusion of the district attorney. Such examination was officious and unnecessary. It necessarily deprived the defendant of that fair and impartial trial guaranteed to him by the Constitution of this state and of the United States.
The majority opinion correctly and fairly states the facts. It also sets forth the general principles applicable to the examination of witnesses by the trial judge, and briefly mentions the limitations on that power. The majority opinion correctly points out that while a trial judge, in a criminal ease, has the power and duty to elicit and to clarify the testimony he “must not become an advocate for either party or under the guise of examining witnesses comment on the evidence or cast aspersions or ridicule on a witness.” It is also pointed out that comment on the evidence in the guise of questions should not be indulged in during trial, and that the trial judge may not, properly, ask questions casting aspersions on the credibility of any witness. It is also the law that the trial judge should not, by his questions, distort the testimony nor engage in partisan advocacy.
In my opinion the record demonstrates that all of these rules were violated. The record shows that defendant’s defense was that he acted in self-defense up to a point, and that he then suffered a loss of memory. After the defendant testified as to the claimed loss of memory, and while the prosecutor was cross-examining, the judge simply took over *248 that cross-examination. His questions covered the pertinent periods time and time again, and embraced much of the material already brought out by the prosecution. After the prosecutor had concluded his examination, the judge took over again, and again covered the same field that he had already covered at great length. After the defendant had been removed from the stand the judge recalled him and again subjected him to a grueling cross-examination. All objections by defense counsel to these tactics were overruled. The questions were partisan, repetitive and argumentative, and some of them ridiculed the witness.
So far as the conference in chambers is concerned, at which defendant and his counsel were, of course, present, the sole question involved was whether Doctor Brandmeyer could give his opinion as to whether defendant was suffering from retrograde amnesia. After properly ruling that the doctor could testify on the subject, the trial judge then took 38 pages of the transcript to lecture the defendant and his counsel on how ridiculous he thought this defense was. Whether intended as such or not, such tactics could not fail to intimidate the defendant and his counsel.
After this colloquy in chambers Doctor Brandmeyer was called to the stand. The doctor, who was a reputable navy psychiatrist, was defendant’s chief witness. The court was sarcastic and unfair to this witness. Even during his direct examination the trial judge took over and asked questions permissible only as cross-examination. If the prosecutor had thus interrupted defense counsel it would have been error, and it was equally wrong for the trial judge to have used such tactics. The record shows that the judge simply took over the cross-examination of this key witness. When the defense took the doctor on redirect to try to repair the damage caused by the judge’s questions, as soon as the doctor gave an opinion favorable to the defense, the judge broke in and cross-examined in a fashion so as to ridicule that opinion.
Undoubtedly the trial judge tried to be fair, and undoubtedly his motives were of the best, but his examination of these witnesses was such that it ridiculed the defendant’s defense, and obviously was aimed at inducing the jury to disbelieve that testimony. This was prejudicial. These errors clearly denied defendant the fair trial to which he was entitled. I would reverse the judgment.