The opinion
*372 Brown, J.
(concurring). I concur in the majority opinion, albeit reluctantly. But for the overwhelming evidence against the defendant, and the fact that the jury by acquitting the defendant on several counts made manifest their “capacity to make discerning distinctions” in these circumstances, I would urge that the defendant be given another trial.
Appellate courts have the responsibility for reviewing prejudicial excesses occasioned by judicial error as well as prosecutorial error. Cf. Commonwealth v. Earltop, 372 Mass. 199, 206 (1977) (Hennessey, C. J., concurring). It cannot be gainsaid that “the particular danger created by [judicial] criticism in open court is the likelihood that it will ‘impress the jury with the idea that [the judge] disfavors the attorney and, inferentially, the position the attorney represents.’” Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 17 (1980), quoting from State v. Pokini, 55 Haw. 640, 645 (1974) (plurality opinion).
Finally, I should hasten to underscore (see note 3, supra) that this court should turn a deaf ear to an argument such as that advanced here by the Commonwealth that fair and competent jury instructions by a trial judge can eradicate the prejudicial effects resulting from that same judge’s own conscious actions, demeaning extraneous comments and intemperate conduct.