¶1specially concurring:
¶2I concur in the conclusion only. In order to reach a verdict of guilty, the jury must necessarily have found, beyond a reasonable doubt, that the defendant did not come within the exception of the statute. The evidence that he was within the exception, if there was any, was such that no court would be warranted, in the face of the verdict, in saying that he did come within the exception. Of course, if, upon all the evidence, there was a reasonable doubt that he was without the exception, he was entitled to the benefit of that doubt and to an acquittal. It does not appear to me, upon all the evidence, that there could be any doubt that he was without the exception. The remarks of the trial judge, in the presence of the jury, were not right and were erroneous. In most instances, such things would necessarily be prejudicial to a defendant. In this case, the court fended the effect of his utterances, to some extent, by an instruction. Under the evidence, as it appears to me, there was no reasonable doubt that the defendant was without the exception of the statute, so that the jury must have found as they did in any event.
¶3For these reasons, I look upon the error committed by the judge as not prejudicial, and feel that, upon the whole record, the defendant had a fair trial.