¶1(concurring in part and dissenting in part).
¶2I agree with the conclusions and holding of the majority opinion regarding the deferred ruling on the motion for judgment of acquittal, and the identity issue as stated in syllabus 1. I also agree with syllabus 2, 3 and 4, but I dissent specifically from syllabus 6.
¶3The bare word in the record does not disclose if the judge showed facial expressions, tonal qualities, stares, smiles, sneers, raised eyebrows, or such other behavior, if any, from which it could be determined that the judge had a prejudicial attitude or mind on the case.
¶4While the trial judge’s conduct may not have been exemplary in this case, I do not believe we should compound such action by punishing society in setting the guilty person free or giving him a retrial where there was sufficient admissible evidence to sustain the conviction. Such procedure does not serve as a deterrent, in my view, any more than does the exclusionary rule which rests merely upon an unsupported assumption that it will serve as a deterrent. See discussion of the United States Supreme Court in Stone, Warden v. Powell, - U.S. -, 96 S.Ct. 3037, 48 L.Ed.2d -, decided 6 July 1976, and specifically the concurring opinion by Chief Justice Burger.
¶5Assumption and surmise are not enough and should not be permitted. This was a trial before the court without a jury. It was a bench trial. No jury was present to be affected by the judge’s expressions, if in fact there were any outward expressions by the judge from which his attitude could be determined.
¶6I assume the defendant agreed to a trial to the court without a jury.
¶7In a nonjury trial, in my view, the trial judge, as the trier of facts in the search for the truth, has a right to inquire into certain relevant admissible matter not adequately developed by counsel which needs clarification or explanation so as to provide a better understanding for the court of the ultimate facts upon which it will be required to make its findings of fact and decision.
¶8I also believe that where the judge is required, and is capable of determining the admissibility of evidence, he is also capable in his deliberations of distinguishing between admissible and inadmissible evidence. It does not follow that merely because evidence was admitted that it was used by the court. It would have been advisable for the judge to have announced or made a record *726that certain evidence will not be or was not relied upon in his decision.
¶9If our courts were governed by Federal Criminal Rule No. 23(c), which provides for a general finding and, upon request, requires a specific finding, instead of our Rule which merely provides that the court “shall make a general finding of guilty or not guilty,” the question of whether or not inadmissible evidence was used would, in all probability, not be before us.
¶10We have held in civil cases that it is better for a trial judge in a trial without a jury to admit evidence which is clearly not inadmissible than to reject it. See Beck v. Lind, 235 N.W.2d 239 (N.D.1975); Jahner v. Jacob, 233 N.W.2d 791 (N.D.1975); Schuh v. Allery, 210 N.W.2d 96 (N.D.1973); Builders Steel Co. v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (8th Cir. 1950). Even though in a criminal case the finding of guilty is required to be beyond a reasonable doubt, there is otherwise no substantial difference in the fact-finding process between civil and criminal cases.
¶11The majority opinion refers to the lengthy interval between completion of the trial and the announcement of the decision as a partial basis for its conclusion. Such interval, in my view, militates equally, if not more favorably, to the assumption that the court took a greater period of time in carefully deliberating to offset any prejudice it may have had than to the assumption that the decision is faulty, prejudicial, or influenced by inadmissible evidence. The court in effect admitted that the case was difficult by the statement: “It looks like the case is thin, but I’m going to — I’ll give it the best I can.” Merely because the case was difficult is no basis for reversing the decision.
¶12In this instance, where the evidence was sufficient to sustain the conviction but merely because some evidence which would have been refused if the trial were to a jury was admitted and came before the court, in my view does not warrant the reversing and the granting of a new trial.
¶13I would sustain the conviction and affirm the trial court.
¶14. In United States v. Stoehr, D.C.Pa., 100 F.Supp. 143, affirmed, C.A., 196 F.2d 276, 33 A.L.R.2d 836, cert. denied Stoehr v. United States, 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643 (1951), the court said:
“The trial judge is not a mere moderator, but a governor of the trial for the purpose of assuring its proper conduct. It is his duty and responsibility to control the conduct of the trial, to facilitate its orderly progress, and clear the path of petty obstructions to the end that the evidence shall be presented honestly, expeditiously, and in such form as to be readily and intelligently understood not only by the court but by the jury. To insure that this is done the trial judge has no more important duty than to clarify the testimony of witnesses, to confine such testimony to relevant matters and to ask questions for the purpose of developing the facts so that all the truth is brought out and that the jury may arrive at a true verdict to the end that justice may be attained by the parties. He must do so in a non-prejudicial manner with circumspection and caution. The extent to which he shall intervene for this purpose is largely a matter of discretion. ‘ … That he is free, not only to give his impressions of the witnesses, but to point out the rational implications of the evidence, is too well settled in federal trials to admit of any dispute.’ ”
¶15United States v. Stoehr, 100 F.Supp. 152. I am of the opinion that the foregoing, which was said in reference to a trial by jury, is equally, if not more, applicable to a bench trial. In making this remark it is not intended that the statement concerning the judge’s commenting on the evidence to the jury applies to North Dakota jury cases which are governed by Rule 51(a), NDRCivP, and Rule 30(a), NDRCrimP.