The opinion
HOOD, Chief Judge
(dissenting).
It is my opinion that appellant was denied a fair, impartial and judicial hearing. Appellant, a young mother, sought custody of her three-year-old daughter. She frankly admitted that after separation from her husband she began living with another man by whom she had an illegitimate child, and that she was still living with him. Notwithstanding the free admission of her adulterous conduct, the trial judge seemed preoccupied with her sexual relations. The record discloses more than twenty occasions when the trial court asked questions concerning, or made reference to, “intercourse,” “sleeping with,” “having it,” “laying up with.” 1a
During the trial the judge lectured appellant respecting adultery, telling her “you can be sent to prison or fined for committing adultery.” 2 He argued with appellant’s counsel regarding the immorality of adultery, citing the Commandment, “Thou shalt not commit adultery.” At the conclusion of the case the court denounced appellant as “just one step above a prostitute,” “a common, ordinary everyday tramp,” whose way of living was a “stinking situation,” and stated: “I am so incensed by the way this common tramp acts that I could go down and do something to her myself.”
The questioning of appellant by the judge in a manner designed only to ridicule and humiliate her, the judge’s moralizing, his denunciation of appellant, and his expression of personal animosity towards her, convince me that the judge’s personal emotions and concepts were permitted to completely override his judicial views. I do not say appellant is entitled to custody of her child, but I do say she is entitled to a judicial hearing. 3
. Some examples are: “Well, you wait for her (the child) to go to sleep before you have intercourse with him, huh?” (Record, p. 28) “When you get in bed, do you wear night clothes or do you just go to bed naked?” (Record, p. 35) “And so you just decided that the thing to do was to go lay up with Bill Sutton, huh?” (Record, p. 48) “Well, your husband was one man, you laid with in bed, wasn’t he?” (Record, p. 52)
. This statement was technically correct (D.C.Code 1961, 22-301) but I doubt there has been a conviction for adultery in this jurisdiction in the past twenty years.
. Even a defendant in a criminal case, when he takes the stand, is entitled to “the same courtesies and consideration as all others involved in the proceeding.” Armstead v. United States, U.S.App.D.C., decided January 28, 1965.