The opinion
*188 DISSENTING OPINION
DeBruler, J.
— According to the statements of appellant and appellee in their briefs, defense counsel made no objection to the oral examination of the insanity defense instruction by the trial judge. As a consequence the State argues that the error in so orally addressing the jury was not preserved for appeal. Appellant concedes that as a general proposition the accused must lodge an objection at trial to impermissible trial intervention by the judge, Micks v. State, (1967) 249 Ind. 278 , 230 N.E.2d 298 , but seeks to come within the exception to that rule erected in Kennedy v. State, (1972) 258 Ind. 211 , 280 N.E.2d 611 . In that case the conviction was reversed because of intervention of the trial judge into the trial in such a manner as to prejudicially effect the accused’s constitutional right to be treated according to fundamental principles of due process. In relieving the accused of the obligation to object the Kennedy Court said:
“A fair trial by an impartial judge and jury is an essential element in due process. See art. 1, §§ 12 and 13 of the Constitution of Indiana. Also, an attorney would be reluctant to object to the judge’s questioning as it then would appear to the jury that the defense and the court were in direct conflict thus doing further damage to the defendant’s cause.” 258 Ind. at 218 .
In that case the judge conducted an examination of a witness before the jury which showed his evaluation of the witness’ testimony. This Court found that an objection to the conduct of the trial judge in those circumstances would have appeared to the jury as if the defense and the judge were in serious conflict with resultant damage to the defendant’s cause. Here a quite different situation existed. Here the judge was engaged in a process of explaining an instruction on the law to the jury. An objection could have been made in a form which would have reminded the trial judge that his oral explanations were in contravention of the statute governing the instruction procedure, without the risk of severe damage to the defendant’s cause. I can only conclude that appellant’s argument is unsuccessful in bringing him within the protective umbrella of the Kennedy exception. I also find the evidence of sanity sufficient, and vote to affirm the conviction.
*189 Hunter, J., concurs.
Note — Reported at 383 N.E.2d 1039 .