¶1 on rehearing.
¶2 November 14, 1923.
¶3 — It is insisted that the question discussed in paragraph five of our 'opinion resulted from a misapprehension of bill of exception number five; that the complaint was not because leading questions were permitted but was directed at the statement of the court relative to it. We have re-examined this bill and find appellant’s contention to be correct.
¶4 While a witness was being examined by the State he was asked relative to some statement theretofore made by him before the grand *641 jury. During this examination the learned trial judge told the district attorney he could lead the witness if he wished to do so, and qualifies the bill by. stating that the “witness appeared very hostile to the State, and answered evasively and with much uncertainty.” The complaint is made that when the court gave the district attorney permission to lead the witness he commented on the weight of the testimony. "We can see no basis for such construction of his language. The qualification attached to the bill would be binding on this court, but even without it the statement of facts reveals the attitude of the witness and justified the qualification. We recognize the rule that trial judges should refrain from any statement from the bench relative to his view upon the testimony but we think it inapplicable to the language of the trial judge at which the present complaint is directed.
¶5 The motion for rehearing is overruled.
¶6 Overruled.