¶1dissenting. It seems to me that the majority, in reversing the trial court has lost sight of appellant’s point for reversal. It seems to me that the reversal is based upon the trial court’s comments, either as comments on the evidence or as comments on the defendant’s failure to testify, rather than upon the court’s failure to grant a severance. The majority properly finds no error in the voir dire examination by counsel for appellant’s co-defendant, as it related to the right of a defendant to refrain from testifying.
¶2No objection was made by appellant to the court’s remarks relating to the credibility of witnesses. The court’s remarks were not specifically made the basis of the renewal of appellant’s motion for severance, which came after appellant had failed to challenge any juror so interrogated and had found two of them acceptable. When the court inquired of appellant’s attorney, he stated that he had no objection. I do not interpret the motion as having been directed to the court’s remarks. The motion, as I see it, was based on the interrogation by McGuire’s attorney, not about the police officer’s testimony, but about the effect of a defendant’s failure to testify. I am simply unable to follow the majority’s statement of possible prejudice, its speculation that somehow the trial judge told the jury that the testimony of the federal narcotics agent was exactly of the same quality and verity as that of the accused, or the premise that the judge’s remarks in any respect related to the credit to be given an officer’s testimony if defendant did not testify or that “they would be left with no discretion in not believing the police officer and that to do so would not be arbitrary,” whatever that means.
¶3It is also difficult for me to relate the remarks of the trial judge made during the voir dire to his remarks in later ruling on the prosecuting attorney’s objection that appellant’s mother was attempting to communicate “second-hand knowledge” to the jury. When the trial judge said “what he saw is for him to say,” appellant did not renew his motion for severance. He simply took exceptions to the court’s remarks. There was no motion for admonition or mistrial. Therefore, I find no basis for reversal.
¶4Appellant’s point IB is not a basis for reversal either. It is based upon testimony of Federal Narcotics Agent Adkins that after he had met appellant and his co-defendant at a Gulf service station, and arranged for their delivery of 100 pounds of marijuana to him, he met the two defendants and another person and was taken in an automobile driven by McGuire to a place where they met appellant Harris and, during this trip McGuire identified a vehicle they passed, saying that “that was Harris, and that he would follow.” Adkins stated that his conversation in planning the delivery was primarily with Harris and this trip was a part of the plan. It later developed, according to Adkins, that the vehicle identified by McGuire stopped and that Harris alighted from it. Putting aside the question of admissibility of the statement as that of a co-conspirator, there was nothing prejudicial about it and McGuire did not, as appellant contends, become a witness against him.
¶5I would affirm the judgment.
¶6I am authorized to state that the Chief Justice joins in this opinion.