State v. Furtick

January 30, 1928. The opinion of the Court was delivered by The defendants were convicted of violating the Prohibition Law, manufacturing intoxicating liquor, a joint enterprise.

After the cross examination of one of the defendants by the Solicitor had been concluded, his Honor, the presiding Judge, participated and elicited from him the facts that he was a young man, about 23, running a two-horse farm with his mother; that he and his father each owned an automobile; and that he was engaged in no other business. The information thus elicited had no direct bearing upon the facts of the case, and naturally presented to the jury the possible inference that an income sufficient to maintain himself in such circumstances must have been derived from the unlawful occupation with which he was charged.

Very properly the presiding Judge is vested with a wide discretion in the progress of the trial, the eliciting of the truth of the issue; he is not simply the "moderator of a town meeting," but there are limits to that discretion. The power of the Judge and his duty are thus clearly expressed in the case of State v. Keehn,85 Kan., 765; 118 P., 851:

"The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial Judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and, whenever in his judgment the attorneys are not accomplishing the full development of the truth, it is not only his right, but it is his duty, to examine and cross examine the witnesses."

His limitations are thus expressed in the case of Hart v.State, 14 Ga. App., 364; 80 S.E., 909, as condensed in note L.R.A., 1916-A, 1192, which contains an exhaustive treatment of the subject:

"While great caution should be used in its exercise, the trial Judge has the right, in his discretion, to question the witnesses during the trial, in order to elicit the truth, and this discretion will not be controlled except where it appears that the manner in which the Judge exercised his right tended unduly to impress the jury with the importance of the testimony elicited, or would be likely to lead the jury to suppose that the Judge was of the opinion that one party rather than the other should prevail in the case."

We reluctantly conclude that the cross examination was not intended to elicit any fact directly connected with the alleged offense; that it was argumentative in effect, at least very strongly suggestive of a line of argument which the solicitor might take; and that it tended to discredit the defense of alibi relied upon by the defendants.

In view of the well-known fact of the great influence of the presiding Judge upon the minds of a jury, who are quick to seize upon any intimation by word or gesture from him, it is better to leave the examination of witnesses to those charged with that duty, in the absence of a plain omission to elicit evidence for or against a defendant. See an interesting discussion of the subject in the case of Adler v. U.S. (C.C.A.), 182 F., 464.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.

MR. CHIEF JUSTICE WATTS and MR. JUSTICE BLEASE concur.