¶1(dissenting). I would reverse this conviction and order a new trial. Aside from the grossly excessive sentence, the defendant did not receive a fair trial.
¶2Stephen Ward, who was 18 years of age at the time of his arrest on June 7, 1968, lived with his mother and six brothers and sisters in a one-family frame dwelling in Vineland. N. J. There were three bedrooms, each containing twin beds, on the second floor, occupied by the children, and an additional bedroom on the first floor occupied by the mother. Defendant Stephen shared a room “right at the head of the stairs,” with one of his brothers. The mother had been supporting the family as a school teacher for a number of years. Apparently there was no financial aid from the fathers of the children. At the time of this alleged offense, the oldest daughter, Jacqueline, aged 21 years, was in the Women’s Marine Corps but living at home, awaiting assignment to active duty.
¶3Stephen was employed during the day and in the evening attended the liberal arts course at the Cumberland County *85College. As the majority opinion indicates, he was a “brighter than average” boy with an I. Q. of 124. He was interested in classical and modern music and wrote poetry and stories. He had a record player in his bedroom and on occasions his classmates and friends, male and female, congregated in his room and the adjoining connecting one to talk and listen to records. His mother was aware of the young peoples’ visits and approved of them. She said she preferred having her children at home and liked them “to have company when they [could].” The friends were welcome as long as they were “respectable,” and not too noisy or “doing things that would be harmful.” Six months or a year before her son’s arrest, she had asked her children not to have “as much company coming in” and not to take girls upstairs unless she was “right there.”
¶4That testimony of the mother produced one of several interjections by the trial court. On direct examination, the mother was asked if it was unusual for Stephen to have three or four visitors. The question was allowed over the prosecutor’s objection, the court saying, “I think she said she permits her son to have guests so long as they are respectable, and I will find out what she means by respectable.” A little later when an objection was made that discussion of an earlier fruitless police search of the premises was immaterial, the court suggested it might be material
… [b]eeause she says she lets respectable people in there, it might be interesting to find out what they were doing there a year ago before to give her notice about respectability.
¶5Then, after indicating that her children abided by the guidelines she laid down about company, the Court interrupted :
“Q. You still have the same rule?
A. Yes, I do.
Q. As of just a few days ago, too?
A. Yes, I do.
Q. You enforce it, I assume?
*86A. To the best of my ability, sir.
Q. Well, what is your opinion as to your ability?
A. Well, I work.
THE COURT: I see.”
¶6At about 7:30 p.m. on June 7, 1968, Ward came home accompanied by three friends, one male and two young ladies. He said he told his mother (who was resting in her room) that he had some company. The mother heard the young people come in but had no recollection of her son saying anything to her. Apparently, all the other children were home at the time. The oldest sister, Jacqueline, was in her room on the second floor. Ward and his friends went upstairs and started the record player. There were no chairs in the bedrooms and he and one young lady sat or reclined on one bed, while the other couple did the same in the connecting room the door to which was open. A short time later another young man, Robert Carroll, aged 17 years, came in, spoke to them for a few minutes and then apparently went down the hallway and began talking with Ward’s sister Jacqueline.
¶7Over defense objection, the prosecutor was allowed to question defendant’s mother about Carroll as follows:
“Q. Did you know at that time that he had been charged with an offense?
A. Charged wtih an offense?
Q. Yes, previous to June 7 of 1968. In other words, prior to the night that the police visited your house, you knew Robert Carroll, I assume, before that?
A. I knew him, yes.
Q. Did you know he had been charged with an offense prior to that?
A. I didn’t know whether he was charged with an offense or not. I knew what I had seen in the paper about what had happened to him at the high school.
Q. I see. And nevertheless you felt that it was all right to have him socially come in contact with your son. Was that within your parental wishes too or was that contrary to your parental wishes?
A. Before this happened Bob had been friends with Stephen for at least a couple of years.
*87Q. And you saw no reason to terminate the relationship or curtail it or cut it down in any manner after what you saw in the newspaper about this Robert Oarroll?
A. No, I didn’t.”
¶8On redirect examination, the witness said she didn’t know “what happened to” Carroll, and she did not know whether, whatever the charge, he was found innocent or guilty or whether the matter was still pending. That kind of cross-examination is not only improper; in my judgment, it is inexcusable.
¶9About 8:30 p.m., the officers came into the house with a search warrant. When they went upstairs into the bedrooms the record player was in operation. Ho one was smoking and the detectives did not suggest they detected any marijuana odor. Detective Tirelli searched the room defendant was in; Detective Coccaro searched the adjoining one. Detective Tirelli recognized that a brother of defendant probably shared the room with him because of the twin beds. The dresser in the room was searched and in the second drawer the detective found the small envelope containing the green vegetable matter. There was clothing in the drawer, most of which the detective thought belonged to Stephen. As he put it, Stephen’s clothing was “probably mixed with some of his brother’s, but most of it was Stephen’s.” He was positive that Stephen Ward’s clothes were there but “they might be mixed with his brother’s.”
¶10Stephen denied that the envelope belonged to him, that he put it in the drawer, or that he knew it was there.
¶11Detective Tirelli then found the pipe stem, referred to in the majority opinion, in the drawer of a desk in the bedroom. Apparently it was a cutdown stem into which, according to the testimony, marijuana (not in cigarette form) was put, held in place (in a manner not clear from the testimony) and smoked. Defendant denied he had ever used the stem but admitted on the witness stand that he knew it was in the desk. He said that a friend, whose name he gave to the police and in court, brought it to his house *88two or three weeks earlier and apparently forgot it. Ward put it in the desk and left it there. He never used it. According to the State’s proof, a chemist took out some residue that was on the inside of the pipe stem and tested it. The test showed it to be marijuana. There is no evidence to indicate that defendant knew there was marijuana in the stem.
¶12The pipe stem produced another trial court intervention incident. While defendant’s mother was testifying on direct examination, she said her son had never owned or smoked a pipe to her knowledge. The court then asked:
“Q. Has your son ever used a stem where they put cigarettes in there ?
A. No.
Q. Generally marijuana cigarettes?
A. No. I have never seen him with one.
THE COURT: I see.
MR. PERONE: Your Honor, I don’t think I understand when the court says a stem where they put cigarettes, generally marijuana.
THE COURT: A mouth stem, looks like a pipe stem, generally designed for that purpose.”
¶13There was no testimony in the case that the pipe stem was used or could be used as a holder for marijuana cigarettes or any other kind of cigarettes.
¶14Detective Tirelli said there was an ashtray in Stephen’s room containing stubs of ordinary commercial cigarettes. In his testimony, Ward said he had been smoking Salem cigarettes, his usual brand.
¶15In the connecting bedroom which was being occupied by the other couple, Detective Coccaro found a stub or remnant of a partially consumed marijuana cigarette. Otherwise his search there was nonproductive. There was no smoke in the room, the stub was not burning nor was it hot. According to a chemist’s test, the remnant contained marijuana.
¶16At the close of the case, there was no testimony connecting Ward with the stub of the marijuana cigarette found *89in the adjoining bedroom. I see nothing of any substance to indicate that he knew there was some marijuana residue in the pipe stem. It is almost absurd to suggest that he criminally possessed that residue and exercised knowing control over it. With respect to the small quantity of marijuana in the envelope found in the shared dresser drawer of the joint bedroom, there were inferences of possession by him. But he denied that the envelope was his, that he knew about it, or that he put it there. Considering the number of persons in the house, the obvious freedom of movement about the various rooms, and the frequency of outside visitors in the various bedrooms, the jury could have found a reasonable doubt about his guilt of criminal possession of any of the marijuana found in the bedrooms, if they had not been turned away from the defense by the court’s attitude toward it. That attitude reached its prejudicial crescendo in the charge to the jury.
¶17Obviously defendant’s credibility was an important factor from the jury standpoint. In the context of the whole case, I think the court’s attitude and its charge undermined unfairly defendant’s chance of success on that vital issue. Three times in the charge the court made similar comments:
Now, you will have to apply your recollection as to what the testimony was, and I am sure you shall have no problem whatsoever.
Now this ease should not be a troublesome one, because it's a classic case for a jury. …
if;…:}?#
Now, you will have to determine from the witnesses and that which they said and the law as the court gives it to you, to determine whether this defendant is guilty or not guilty, and I again reiterate, you shouldn’t have any trouble whatsoever.
£$…$$*
Now, you noted the attitude of the defendant himself when he took the stand. How did this defendant impress you? You may consider that there is no person in the entire world more interested in the outcome of this case than the defendant, and it is proper for you to inquire whether that interest caused him to color his testimony and depart from the paths of truth.
¶18*90These remarks cannot .be considered in isolation. They must be added to the atmosphere which I think pervaded the courtroom when they were made. In combination with that atmosphere, they unfairly prejudiced the defendant’s cause and I cannot escape the feeling that the record in its totality fairly breathes the trial court’s view that defendant ought to be convicted.
¶19The pattern of the trial was very much like that presented in State v. Lemon, 107 N. J. Super. 101 (App. Div. 1969). There the same trial court was reversed for improperly questioning the defendant and later charging the jury on the issue of credibility in much the same manner as was done in this case. Speaking about their fact-finding function on that issue, he said, “How, … it shouldn’t be hard at all.” Later, toward the end of the charge, he repeated: “You heard it [the facts] and it shouldn’t be any trouble whatsoever, none at all. … These comments were in context with statements that the judge was “rightfully proud of the prosecutor” and that he was “mighty proud of our policemen … Defense counsel objected to the comments which indicated the jury should not have any trouble with the case and the court told the jury that those comments related only to the fact that the trial was a short one. In spite of this supplementary statement, the Appellate Division reversed the conviction holding that on the whole record defendant had been denied a fair trial.
¶20In the present case, defense counsel objected to the portion of the trial judge’s charge in which he told the jury they should not have “any trouble whatsoever” in deciding the issue of truthfulness. However, unlike the Lemon case, the judge gave no further explanation of the significance of his comments.
¶21Although the above incidents of the trial warrant a new trial before an uninfluenced jury, still if none of them was present, there is another error which of itself compels a reversal. When the case was sent to the jury, the State’s *91claim of unlawful possession of marijuana (i. e., intentional control of it accompanied by knowledge of its character) rested on three bases. (1) The partially consumed marijuana cigarette found in the bedroom adjoining defendant’s. A finding of possession by the defendant could not rest on that proof alone. (2) The matter allegedly taken from the inside of the pipe stem. There is no doubt that Ward possessed the pipe stem. His uncontradicted testimony, however, is that a friend left it at his home and he put it in his desk, without ever using it. The facts have to be strained to their utmost to produce even a gossamer thread inference that defendant knew there were some left-over particles of marijuana inside the pipe stem and that he intended to exercise control over them. (3) The small envelope containing marijuana which had been found in a drawer of the dresser apparently containing articles of clothing of Ward and one of his brothers. Under the charge of the court the task of the jury was to decide on the proof supporting the three claims whether defendant was guilty of unlawful possession of marijuana.
¶22When the jury returned to the 'courtroom, the foreman said the verdict was “Guilty as charged.” Defense counsel requested that a poll be taken and the court said to the Wry:
“Now, as the clerk calls the roll, and by name you have to give your oton verdict. Ton follow me?” (Emphasis added.)
¶23The clerk began the poll with the foreman of the jury who responded: “Guilty.” The court immediatley intervened :
“Is that your whole verdict? Because it’s different than what— the way you announced it.”
¶24The foreman then said:
'Guilty as charged.’
¶25*92The next seven jurors made the same announcement. However, the ninth juror said:
“Guilty of possession of pipe stem.”
¶26The last three jurors reverted to the foreman’s statement of their verdict. Without comment or inquiry as to the significance of the ninth juror’s verdict, the court entered a unanimous verdict of “Guilty as charged.” In doing so, I believe the court failed in the discharge of its duty. In light of the facts in the case, as well as the court’s quest for specificity as to the foreman’s verdict and his warning that each juror should give Ms own verdict, the ninth juror’s statement of her finding was so incongruous, and its meaning so doubtful, to say the least, as to impose an inescapable obligation on the court to inquire as to its significance. See State v. Butler, 27 N. J. 560, 608 (1958); R. 1:8-10. To assume that it had the same connotation as “guilty as charged” must be deemed plain error.
¶27The juror’s verdict was reasonably susceptible of the conclusion that she did not or could not find beyond a reasonable doubt that Ward had unlawful possession either of the envelope containing the marijuana or of the cigarette stub. However, since he admitted possession of the pipe stem which could be used in connection with the smoking of marijuana, it may have seemed reasonable to her to find him guilty of possession of such an instrument. But her express statement revealing her finding that Ward had possessed such a stem may well have been intended to indicate the limit of her finding and to show she was not convinced beyond a reasonable doubt that defendant knew there were vestiges of marijuana inside the stem. No one can be reasonably certain about the true meaning of the odd verdict. Whatever we as judges might think of the defendant’s guilt or innocence if we were performing the function of the jury, can we possibly think the verdict as entered by the trial court without inquiring as to the one juror’s real *93intention so indubitably signified a unanimous verdict of guilty of possession of marijuana as to justify depriving this young man of his liberty and sending him to State Prison ?
¶28Although I think defendant’s conviction should be reversed, I agree with the majority that the sentence of 2 to 3 years in State Prison was grossly excessive. In addition, the events which followed in its wake were tragic.
¶29Ward was committed to prison on November 7, 1968. After about two weeks in that confinement, it became necessary to transfer him to the New Jersey State Hospital for the Criminally insane. He remained there until January 21, 1969 when he was returned to prison. Nine days later the authorities found it necessary to hospitalize him again. This stay lasted until April 14, 1969 when he was reconfined in prison. At the request of counsel, Ward was transferred on June 5, 1969 to the Yardville Yonth Reception and Correctional Center. Six days thereafter he returned to the hospital and stayed there until August 18 when he was transferred to a closed ward of the State Hospital under a civil commitment. Following an examination by an independent psychiatrist, he was released on parole to return home on October 15, 1969.
¶30The record before us is not sufficient to reveal the relationship between the State Prison confinement of this young first offender and his mental illness. Bnt whether the relationship was coincidence or cause, actual or contributory, the experience should put emphasis on avoidance of inordinately severe prison sentences.
¶31On the whole case, however, no sentence should have been imposed unless and until defendant’s guilt had been established by a full and fair trial and unqualified jury verdict. Since he did not have such a trial, I vote to reverse the conviction.
¶32Justice Hall joins in this dissent.
¶33*94For affirmance as modified — Chief Justice Weintraub and Justices Jacobs, Proctor, Schettino and Haneman —5.
¶34For reversal — Justices Francis and Hall — 2.