¶1 dissenting:
¶2 Though I fully agree with the principle stated in the syllabus, it does not apply to the situation which existed, as shown by the record, in the trial of this case. For that reason I dissent from the decision of the majority.
¶3 In my opinion the defendant had a fair trial which was free from prejudicial error and in which the evidence was ample to support the verdict of the jury finding her guilty of murder of the second degree. The sole ground upon which the majority sets aside that verdict and reverses the judgment is the action of the trial judge in propound *718 ing certain questions to the defendant while she was testifying in her own behalf after examination by her attorney and cross-examination by the prosecuting attorney had not succeeded in developing pertinent facts relative to her conduct shortly before or at the time she shot and killed her husband. I emphatically disapprove any act or conduct of a judge of any trial court which indicates the slightest bias or unfairness toward any party or any opinion entertained by him with respect to any factual question, and I would promptly act to reverse the judgment and award a new trial whenever behavior of that nature occurs. But I would not require a judge of a trial court to act the part of a mere umpire in charge of a game between contestants or deprive him of his unquestioned right and duty to exercise his judicial power to direct and conduct the trial of a case. A trial is not a game. It is a solemn judicial inquiry to determine the merits of the conflicting claims of the parties for the sole purpose of administering justice between them according to law and the right of the case.
¶4 The judge of a trial court should, at all times, carefully refrain from encroachment upon the function of the attorneys who represent the litigants. Rarely should he engage in the examination of witnesses. That is the work of counsel. When, however, a witness is unwilling to tell the facts within his knowledge, and counsel are not disposed, or are unable, to elicit the facts, it may be proper for the judge, within recognized limits, to interrogate a witness. In such instances his failure to do so would risk his proper control of the case or require him to submit to the whim of an unruly witness. He is not required to do either.
¶5 The defendant in this case was unwilling to tell the whole story. She had not responded fully or frankly to the questions asked by counsel. Though the numerous questions propounded by the trial judge were limited to a few related facts, and indicated persistency beyond the point of cautiousness, they were not unfair or improper, they showed no bias or prejudice for or against the de *719 fendant and they did not intimate any view as to her guilt or her innocence, or as to any other issue of fact. The majority opinion concedes that no prejudice resulted from any single question, but it concludes that the number, there being forty-one, intimated the opinion of the trial judge to the jury. The majority, however, does not indicate what that opinion was. It is difficult to understand how, without more, questions which singly are not prejudicial, collectively are so; or to determine, without further basis of description, what was the opinion which the trial judge, by the questions considered collectively, is said to have intimated to the jury. The record does not portray the demeanor of the trial judge at the time he interrogated the defendant. I can not say that he had any opinion as to any issue of fact, or if he entertained any opinion, what that opinion was; and I doubt if even the jury thought otherwise.
¶6 I am unable to find, in this record, any act of the circuit judge who conducted the trial of this case indicative of any partiality or lack of fairness upon his part toward either party, or any conduct by which any opinion entertained by him concerning the guilt or the innocence of the defendant, or as to any other fact, was or could have been communicated or disclosed to the jury. Nothing prejudicial to any right of the defendant appears to have resulted from the conduct of the trial judge.
¶7 The defendant was fairly tried. The verdict of guilty •of murder of the second degree was fully warranted by the evidence. In fact, upon the evidence, a verdict for any offense less than murder, or of not guilty, would not have been justified. The verdict was approved by the court and a proper judgment was rendered upon it. Perceiving no prejudice or injustice to the defendant, I am unwilling to disturb that judgment.
¶8 I am authorized to say that Judge Fox concurs in the views expressed in this dissent.