The opinion
Judge Phillips
dissenting.
Though, in my belief, there is no more salutary and necessary rule in our system of jurisprudence than that which enjoins a trial judge from prejudicing a litigant by expressing an opinion or manifesting a leaning adverse to his interests before the jury, I am nevertheless constrained to conclude that the trial *129 judge’s comments in this instance were not of that character and did not have that effect. Had the remarks been made in a different context, such as Morrison being tried by himself, the effect may well have been very prejudicial, indeed, but in the context of this case I cannot believe that the remarks prejudiced Morrison in any way.
The two defendants, Morrison and Templeton, were being tried together for the same criminal incident. But though the evidence that the jury had heard and was to consider tended to show that Morrison had been just as active, if not more active, than Templeton in both the break-in and the larceny, and that the criminal undertaking was his idea and he invited Templeton to participate in it, Templeton was charged with both crimes while Morrison was charged only with larceny. In winding up his instruction to the jury as to Templeton, after covering both crimes charged, and in beginning his instructions as to Morrison, the judge’s complete remarks were as follows:
Those are the issues as to Ricky Templeton, there being four. You will answer either the first or the second issue, and you will answer either the third or the fourth issue.
As to Andrew Morrison, the issues as to him deal with felonious larceny. I do not know and cannot explain to you why Andrew Morrison is not charged with the felonious breaking or entering, after hearing the testimony; but it is not my function nor yours to decide what the charges should have been. It is our function to try the case on the evidence presented here in this Court; and, as to Andrew Morrison, the first issue is whether he is guilty of felonious larceny of goods belonging to H and B Company of Statesville, Inc., on or about March 1, 1981; and I must repeat what I have told you about Mr. Templeton as to the issues there.
Having heard the evidence, which, if anything, was stronger against Morrison on all points than it was against Templeton, and but a moment before having heard the judge explain and apply the law of breaking and entering, but only to Templeton, the jury already knew that Morrison could have been charged with breaking and entering like Templeton was. Jurors are not automatons who think only when programmed. Being of normal intelligence the jury could not have helped but been wondering why Morrison *130 wasn’t being tried for everything that Templeton was, and the only new thing that they learned from the judge’s remarks was that he didn’t know either. Telling the jury that and directing their attention away from that problem to the one offense that Morrison was being tried for and reminding them of their duty in regard to it, as the judge did, if not necessary, was certainly not inappropriate, in my opinion, and was more likely beneficial, rather than detrimental, to Morrison.
The judge said nothing in my view that could have led the jury to believe that he accepted the evidence as true or thought that they should. My conviction that the remarks were harmless is buttressed by the fact that Templeton, who was not burdened with any untoward remarks by the judge, was also found guilty, though the evidence against him was not quite as strong as it was against Morrison.
Therefore, I vote no error.