SHINN, P. J.
In a jury trial, Jay Robinson was convicted of four narcotics offenses consisting of the sale of amidone, the sale of heroin, and the possession of amidone and morphine. Probation was granted on condition that he serve one year in the county jail. Robinson appeals from the judgment and the denial of his motion for new trial.
Defendant is a motion picture actor. The chief prosecution witness was Rodney Lynn, an aspiring actor who had known Robinson for two or three years and sought his help in obtaining theatrical roles. The following is the substance of Lynn’s testimony.
On November 12, 1958, Lynn contacted Fred Kalas, a Los Angeles County Sheriff’s Deputy, and informed him that defendant was engaged in narcotics activities. He was disturbed because Robinson had told his theatrical agent and one of his friends that he was hooked on heroin, whereas he had taken heroin on only two occasions, once in San Francisco when he and defendant each took a heroin injection in the other’s presence, and again on November 6,1958, at defendant’s home on Stone Canyon Road, when he, Robinson and a man named Coster each took a heroin injection. On the afternoon of the 12th, on instructions by the deputies who had previously searched him and given him $15, Lynn, Kalas and Deputy Stamiesen went to the Bel Air Hotel parking lot where Lynn telephoned Robinson telling him he knew someone who was interested in buying some new “albums” but wanted first to try a sample; Robinson told him to come by in about 20 minutes. Lynn testified that the word “album” as used by them in prior conversations indicated a quantity of heroin. Lynn went to defendant’s home, gave him the $15 and received a blue bindle which was later proved to contain the narcotic amidone. Lynn told Robinson he would contact him later to make a larger purchase if the narcotic was satisfactory.
That evening Lynn went to the Sheriff’s station and placed another telephone call to defendant, while Deputy Kalas listened on an extension telephone with Lynn’s permission. Lynn stated that his friend was pleased with the “first package” and wanted to buy $100 worth. In the first of two subsequent telephone conversations that evening, Robinson promised to have at least eight “papers” by noon the next day. After telephoning Robinson the following morning and arranging to pick up the "stuff ’ ’ in half an hour, Lynn went with Kalas, Stamiesen and several other sheriff’s deputies to the parking lot of the Bel Air Hotel where they separated, Lynn
walking the distance to defendant’s house, the officers driving to the vicinity and stationing themselves around the premises. Lynn had previously been searched and handed $100 in ten dollar bills, the deputies keeping a list of the serial numbers. It had been settled that if Lynn made a purchase of narcotics he was to signal to the officers by turning and placing his hand against the front door as he left the house. Upon being admitted to the house, Lynn went into the bathroom with Robinson, handing him the $100 and receiving from defendant eight white bindles which were proved to contain heroin. They returned to the living room and talked to defendant’s guests, Dan Poster and Victoria Caldwell. Lynn placed the bindles in an empty cigarette package and put the package in his shirt pocket. As he left the house he signaled the officers whereupon they entered and placed the occupants under arrest.
The evidence respecting occurrences in the Robinson home will be stated later in our discussion of the points on appeal.
Testifying in Ms own behalf, defendant denied possessing narcotics, selling narcotics to Lynn, taking heroin in Lynn’s presence or telling anyone that Lynn was an addict. Lynn and Coster were at his home on November 6th but they discussed acting roles and the repayment of $115 or $120 Lynn had borrowed from him. Lynn telephoned him on November 12th asking to hear one of his phonograph albums; when Lynn came to the house Lynn gave him $15 in partial repayment of the loan. The telephone conversation on the evening of the 12th related to the playing of records Lynn wanted to hear and the $100 Lynn owed him; there was no mention of “packages” or “papers.” Lynn called him the following morning, stating that a check had cleared and that he had defendant’s money. Lynn gave him the $100 to pay the balance of the loan; another $165 found on his person at the time of his arrest represented an income tax refund. Defendant denied making any of the incriminating statements which were attributed to him by the arresting officers.
A private investigator called by the defense testified that during five years as a detective on the sheriff’s narcotic squad he had never heard the word “album” used in reference to heroin. This testimony was in direct conflict with that of Stamiesen. The testimony of Coster, a witness of defendant, on cross-examination and of Deputy Kalas in rebuttal, will be related hereinafter.
The contentions on appeal are the following: The court
committed error in permitting the cross-examination of defendant with respect to alleged admissions to the arresting officers, which were denied by defendant, and in permitting rebuttal testimony by one of the officers with respect to such admissions which was properly a part of the People’s case in chief. A further contention is made that the court conducted the examination and cross-examination of witnesses in a manner that amounted to a usurpation of the duties of the prosecutor and which could not have failed to indicate a belief in defendant’s guilt. It is forcefully argued that these irregularities deprived defendant of a fair trial. We do not doubt that the procedure complained of was highly irregular ; the crucial question is whether defendant was thereby deprived of a fair trial.
In their case in chief, the People elicited from Fred W. Halas, one of the arresting officers, the substance of conversations between defendant, Officer Stamiesen and himself at the time of his arrest. The witness testified that $100 in bills was taken from a pocket in defendant’s dressing gown together with the further sum of $165. Ten $10 bills bore the serial numbers of the bills that had previously been given to Lynn. Defendant said the money was his and that he had just received a check from the government. The witness did not testify on direct examination to any other conversation with or statement of defendant.
Deputy Sheriff Stamiesen, one of the arresting officers, testified that at the time of the arrest in defendant’s home, on the basin ledge in the bathroom, he found a Serán wrap package or carton with Serán wrap around the outside and a part of a roll within, inside which was a plastic vial containing paraphernalia used in injecting narcotics; upon chemical analysis traces of morphine were found in two glass eyedroppers. In reply to questioning defendant said he knew nothing about the articles. He was asked later: “Now do you want to tell me who the stuff belongs to that was in the bathroom?” and defendant said “Yes, it belongs to me” and that the $100 in bills had been paid to him by Lynn for the eight bindles recovered from Lynn, and further that it was a part of a shipment he had received that morning along with the gum wrapper and that he admitted selling a bindle for $15 to Lynn the day before. In reply to questions by the court the witness testified that he found puncture wounds on defendant and Foster indicative of recent use of narcotics. This witness was not called in rebuttal.
Under the guise of laying a foundation for impeachment by testimony of Officer Kalas, and directed by the court to lay a foundation by designating the time, place and persons present, defendant was cross-examined with respect to statements to the officers, not touched upon in their direct testimony. It will appear from the testimony of Kalas that these supposed statements were of a highly incriminating nature. Defendant denied having made any of the statements.
Called in rebuttal, Officer Kalas testified that defendant stated in answer to leading questions, “Yes, I have been using narcotics for a couple of months. I got started in San Francisco and I came down here and had stopped using it, but it started up again about two weeks ago”; also “Yes, I received a shipment about 45 minutes or an hour ago before the arrest”; also the witness gave an affirmative answer to the question whether the defendant said that “If you would keep his arrest quiet from the papers, that he would cooperate with you”; also that the officers asked defendant what kind of cooperation he was referring to and defendant said “What if I gave you the name of my connection and several people who are involved in the Hollywood area?”; that the officers stated they were sure they could keep it away from the newspapers and if they divulged it it would tip off the connection and the other people defendant mentioned, that defendant could not make the call that day because the officers had to take him to the station and that defendant said that he would try to make the call the following day. On cross-examination the officer was shown the police report of the arrest; he admitted that it contained nothing with respect to any “deals or calling any connection, newspaper publicity, or anything of that nature.” When questioned by the court as to any reason for not mentioning the matter in the report, the witness answered that the officers did not want anyone outside of the department to know that defendant had agreed to work with the authorities.
It is stated in the brief of defendant and conceded by the People that defense counsel had received from the prosecution a statement of the testimony that would be given by the officers and that there was in this statement no part of the substance of the testimony that was given by Officer Kalas on rebuttal. Neither was any of it contained in the copy of the police report that had been furnished defense counsel under order of court.
During the foregoing cross-examination of defend
ant, Ms counsel, anticipating that it was the purpose of the People to offer evidence that defendant had made the statements to the officers which he had just denied having made, interposed an objection to such evidence about to be offered in rebuttal upon the ground that any evidence of defendant’s incriminating statement was a part of the People’s case in chief and, therefore, not admissible on rebuttal. The objection was overruled. It should have been sustained.
It was, of course, wholly unnecessary to question defendant on cross-examination with respect to any statement or admissions he may have made. The rules with respect to laying a foundation for impeachment by proof of inconsistent or contrary statements have no pertinency to proof of statements or admissions of a party. “The act, declaration, or omission of a party, as evidence against such party” may be proved upon a trial. (Code Civ. Proc., § 1870, subd. 2.) The statements attributed to defendant by the rebuttal testimony were a part of the People’s evidence in chief, and not proper rebuttal. The only proper method to have them placed in evidence would have been for the People to move for leave to reopen their case in chief. Defendant would have had a right to oppose the motion and it would have been necessary for the People to show good cause for granting the motion. Defendant could well have contended that he was taken by surprise. He had been furnished with a statement of the testimony the officers would give. It contained nothing except what was in the police report, which was also furnished him. There was no suggestion therein of the very damaging statements that were testified to on rebuttal. The court could well have denied a motion to reopen the People’s case.
The device of bringing in the evidence as rebuttal upon the theory that it was proper by way of impeachment was merely a means of evading the proper and necessary step of seeking leave to reopen the case in chief.
The People regarded the claimed statements of defendant to be a qualified confession. They elicited from Officer Kalas testimony that the statements were made freely and voluntarily. Of similar procedure we said in
People
v.
Rodriguez,
58 Cal.App.2d 415, at page 419 [136 P.2d 626]: “The procedure was entirely wrong. If the defendant had confessed, proof of the confession was a part of the case of the People and it was the duty of the district attorney to offer it before resting his case, when the testimony was then available and there was no reason for not offering it in chief. When
the ease of the People is closed and the defense is in, the remainder of the People’s ease is limited to evidence in rebuttal of that produced by the defense and should be so limited by the court, except where a proper showing is made for reopening the ease in chief for the receipt of further evidence. The People have no right to withhold a material part of their evidence which could as well be used in their case in chief, for the sole purpose of using it in rebuttal. Evidence as to statements of the accused tending to show his guilt was admissible to establish the truth of the facts stated. Evidence offered to show contradictory statements of a witness or to otherwise impeach him is received because it bears upon the credibility of the witness and not for the purpose of proving the truth of the statements which are contradictory of the witness’ sworn testimony. The alleged confession was offered to establish facts constituting guilt; the impeachment feature was incidental and comparatively unimportant. It was no more proper for the district attorney to offer the evidence as rebuttal after defendant’s denial of the alleged statements, under the pretense that it was offered to impeach the defendant, than it would have been to offer it in rebuttal if the defendant had not been questioned about it at all. It makes no difference here that the testimony as to the confession, aside from being evidence of the fact of guilt, also tended to impeach the defendant.
(People
v.
Yeaton
(1888), 75 Cal. 415 [17 P. 544].)”
We pass to the contention that the court, by constant and extensive interruptions and activity in the examination and cross-examination of the witnesses, assumed the role and function of the prosecutor and by so doing created in the minds of the jurors the impression that the court favored the case of the People. Although we are generally opposed to quoting our former opinions at any considerable length it seems appropriate that we incorporate our views on the subject as stated in
People
v.
Campbell,
162 Cal.App.2d 776, at pages 786-788 [329 P.2d 82] : “The interrogation of the witnesses by the deputy district attorney on direct and cross-examination was orderly and efficient. The questions propounded by the court were only those which would naturally have been asked by the prosecutor. Nothing had been overlooked or was likely to be overlooked by the prosecutor in the elicitation of all relevant testimony. There was no hesitation upon the part of any of the witnesses to testify freely and no uncertainty whatever in their testimony. There was
no occasion whatever for the court to take over the duties of the deputy district attorney in the questioning of the witnesses, and yet this is what the court did persistently. There can be no doubt as to the duty of a judge to render assistance during the course of production of evidence in a jury trial, where assistance is needed. A witness may be evasive and his answers incomplete or uncertain, important matters may be overlooked by counsel, and in these and similar instances, it is entirely proper for the court to intervene in order to aid in the elicitation of clear and comprehensive testimony. This, of course, must be done in a manner that gives no indication of the court’s inclination for or against either party. But for the court in a criminal case to interrupt the orderly and efficient interrogation of the People’s witnesses by the prosecutor and to take over the latter’s duties repeatedly, as was done in the present case, can scarcely fail to have some influence upon the minds of the jurors adverse to the defendant. Judges have been admonished time and time again of their duty to maintain a strictly judicial attitude and to refrain from comment or other conduct which borders upon advocacy. We deem it appropriate to quote in part the remarks of the Supreme Court in
People
v.
Mahoney,
201 Cal. 618, 626-627 [258 P. 607] : ‘Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. For this reason, and too strong emphasis cannot be laid on the admonition, a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant. It is unnecessary to cite the cases bearing on this subject. It is a fundamental principle underlying our jurisprudence.’ When the trial judge officiously and unnecessarily usurps the duties of the prosecutor by taking over the questioning of witnesses and in so doing creates the impression that he is allying himself with the prosecution, harm to the defendant is inevitable. We do not see how any judge could fail to recognize that fact.
(People
v.
Long,
63 Cal.App.2d 679, 685 [147 P.2d 659].) Our question is not whether the court’s conduct was harmful to the defense; we are certain that it was. The difficult question in such situations is whether the invasion of the defendant’s rights was of so serious a nature as to have resulted in a conviction which otherwise, in all probability, would not have occurred. If we were in doubt here as to the correct answer we would resolve the doubt in favor of the accused.” We held that in view of the strong evidence of guilt the conduct of the court did not warrant a reversal of the judgment.
We are convinced that in the present ease the court unnecessarily participated in the trial by the examination and cross-examination of the witnesses to an extent which deprived the defendant of a fair trial.
As much as we dislike to lengthen our opinion by incorporating therein extensive excerpts from the reporter’s transcript it seems to be the only means by which it can be fairly and adequately shown how far the trial judge went in assuming the role and exercising the functions of prosecutor. That is the point we are discussing. It is not that the court asked improper questions. Upon the contrary, the questions generally were such as a prosecutor could properly have asked and very likely would have asked. To the extent that he was interrupted in the performance of his duties, to that extent they were assumed by the judge.
We have excluded from the excerpts other passages showing participation by the court such as would normally occur during a trial. With few exceptions the court’s participation was not for the purpose of clarifying the testimony of a witness or bringing out a fact that had been overlooked; there were needless interruptions and they were of a nature which tended to develop the case of the People.
We refer to particular instances of the court’s participation. The word “album” was used by Lynn in telephonic conversations with defendant and in other connections. A most important question was whether the word had a secondary meaning. The court took upon itself to develop in the testimony of Lynn that by prearrangement with defendant “album” would mean heroin. The court developed the fact that Deputy Kalas was listening in on Lynn’s conversation with defendant, with the knowledge of Lynn, and the court then called for the conversation. The court corrected Lynn’s use of “bindles” to “papers.” The court aided Lynn in his efforts to remember a date. The court brought out the number of calls made by Lynn from the sheriff’s substation, that Kalas was on an extension and that all the calls were with Lynn's consent. The court took the initiative in bringing out what was said and done when Lynn first telephoned defendant and that Lynn and the officers then went to defendant’s residence on Stone Canyon Road. The court then reviewed and repeated the testimony of the witness with respect to the telephone conversations and the movements of the parties. The court developed in the testimony of Stamiesen that a signal
was prearranged upon which the officers would enter defendant’s house and make an arrest. The court also developed that another signal was given by Officer Rodrigues indicating that he had observed Lynn’s signal. The court by extensive questioning brought out the extent of Kalas’ experience as a narcotics officer, had him explain as a qualified expert the purpose of the paraphernalia that was found by the officers and how such articles are used. The court brought out that there was a connection between the roll of adhesive tape and narcotic addiction in that the tape was used to bind together the bindles. The court brought out that the word “fix” is used as a verb or a noun to mean the use of a narcotic. The court brought out in the testimony of Officer Stamiesen that he examined defendant and found puncture marks and upon further questioning by the court developed that there were at least ten marks. The court asked “How many marks did you see, starting with number one to infinity—one, two, three, four—how many?” and received an affirmative answer to the question whether these marks might be evidence of addiction. The court inquired of Officer Kalas as to the reasons or excuses for the inadequacy of the police report. Time and again facts were developed by the court’s questions which were of the very essence of the People’s case. They were the prosecutor’s best ammunition. They were the most damaging to the defendant. Being elicited by the court they no doubt had a greater impact upon the minds of the jurors than they would have had if brought out by the prosecutor.
Neal Tucker Coster, an aspiring actor, testified on behalf of defendant to the friendly relations between defendant and Lynn. He contradicted the testimony of Lynn that on one occasion when Lynn visited Robinson, that Lynn, Robinson and the witness injected themselves with a narcotic and he denied that any of them had done so. He testified that Lynn told Robinson that he had a cheek coming the following morning and would return the money he owed Robinson. The witness was ably and fully cross-examined by the deputy district attorney and after the latter announced that he had nothing further, the court took over and conducted further cross-examination. This interrogation covered with infinite detail the entire testimony of Coster given on direct. The court conducted a cross-examination which comprises 13 pages of the reporter’s transcript. The court asked 99 questions. There was nothing whatever to be clarified in the testimony of the witness and we cannot see that the cross-examination
was intended to serve any purpose other than to strengthen the cross-examination by the deputy.
While the deputy district attorney was conducting the cross-examination of defendant in a competent and thorough manner, the court, after having made numerous interruptions, took the cross-examination out of the hands of the deputy and proceeded to conduct a cross-examination at great length. We have read the entire cross-examination and have found in it no reason or justification for the court’s participating in it.
The cross-examination of defendant and Coster by the court was meticulous and critical; it was such cross-examination as a vigilant and resourceful prosecutor would conduct for the purpose of detecting contradictions and inconsistencies in the testimony of a witness in an effort to discredit him. In each instance the cross-examination by the deputy district attorney had been properly and efficiently conducted. He did not need any assistance from the court. The fact that the court saw fit to assist in the cross-examination of the witnesses by the prosecutor by its own interrogation would normally mean, and would reasonably be understood to mean, that the court was skeptical whether the testimony given by the witnesses on direct would stand up under further severe and extensive cross-examination. We do not see that it had any other purpose.
We have not encountered in any case of our own, nor have we discovered in our extensive reading of the decisions of our courts a record in a criminal case in which the judge undertook to try the ease for the People to the extent, or nearly to the extent as was done in the instant ease. The inevitable tendency of the court’s participation in the trial, always on behalf of the People, was to create in the minds of the jurors the impression that at least the court’s sympathies lay with the prosecution. The record as a whole demonstrates that the judge acted as prosecutor as obviously and efficiently as would have been the case had he been sitting beside the deputy district attorney at the counsel table. To be sure, there is nothing in the record in the way of an expression, direct or implied, of the court’s belief in the defendant’s guilt, but we are nevertheless convinced that the voluntary assistance rendered by the court in the presentation of the People’s case could not have failed to add weight to it in the minds of the jurors, to the great disadvantage of defendant. As the court stated in
Hunter
v.
United States,
62 F.2d 217: “It is too much to expect of human nature that a judge can actively and
vigorously aid in the prosecution and at the same time appear to the layman on the jury to be impartial.”
Entertaining no doubt that the court’s rulings and actions were prejudicial to the defendant, our question is whether the prejudice was so great as to deprive the defendant of a fair trial. We believe it was.
It is not contended by defendant that the evidence was insufficient to justify the verdict. Manifestly, it was sufficient; but, in our opinion, it was not so strong or conclusive as to have precluded a reasonable doubt in the minds of the jurors as to defendant’s guilt.
The case was essentially one that required appraisal of the credibility of the witnesses. The witness Lynn was not only an informer, which in the minds of all right thinking persons would have caused his testimony to be regarded with suspicion and aversion, but he was an ingrate who had been befriended by defendant and had sought and received from defendant assistance in the development of his incipient career as an actor. Moreover, he was vengeful and bent upon the utter destruction of the reputation and career of Robinson. When he went to the authorities it was with the purpose of entrapping Robinson. He would not have been above shaping his telephonic conversations to fit his ends. There was not entire agreement among the witnesses as to the words used in the conversations other than the word “album.” Paraphernalia was found in the bathroom which furnished definite evidence that some one had been using narcotics. At the time the articles were found in the bathroom two guests were in defendant’s home, one of whom was evidently a user of narcotics, and according to Lynn, he, Robinson and Foster had been in the bathroom. According to defendant, Lynn was alone in the bathroom for some time. Lynn had been there the previous day. It is true that Officer Stamiesen testified that defendant admitted ownership of the paraphernalia but he also testified that defendant stated he knew nothing about it. Defendant, when questioned whether he had received $100 from Lynn, admitted that fact. According to Officer Stamiesen, defendant also admitted that he had received it in payment for the eight bindles. It was signifícánt that the police report contained nothing with respect to defendant’s admissions as testified to on rebuttal by Officer Kalas and contained nothing with respect to the scars on defendant’s arm as described by Officer Stamiesen, although the report made note of similar scars found on Foster. The testimony of Kalas in rebuttal consisted of the most material and damaging state
ments of defendants, none of which was related in Kalas’ direct examination. It pictured defendant as a foul fellow who was willing to barter all honor and decency for the favor of being shielded from publicity. If the jurors had believed that defendant made the offer it is little wonder that they found him guilty. All the incriminating statements related by the state’s witnesses were denied by defendant. The jury had before it evidence that defendant was enjoying a highly successful career as an actor; he owned a residence worth $55,000 or $60,000 upon which there was an encumbrance of $17,000. While not immediately employed, he had prospects of lucrative employment. He had remained inactive to care for his invalid mother. It did not appear that there was any necessity for him to engage in the odious and detestible traffic in narcotics, nor did it appear that he had formerly furnished or sold any narcotics. Certainly it would have been an irrational thing for him to acquire narcotics merely for the purpose of passing them on to Lynn in return for $100.
We do not imply that there was not substantial evidence of defendant’s guilt nor do we express a doubt as to his guilt. Even if guilty he was as much entitled to a fair trial as if he had been innocent. We do not believe he had a fair trial. When the court conducts the case of the prosecutor, as was done in this case, it constitutes in our opinion an irregularity which necessarily tends to balance the scales in favor of the People. Approval of the procedure disclosed by the record would establish a most unfortunate precedent. We consider it to be our duty to express our strong disapproval of the court’s undertaking to present the case of the People as was done in the present case.
The People make the point that defendant registered no objection to the court’s extensive participation in the trial of the case and that he failed to cite it as misconduct. It is contended that this precludes him from now urging the court’s conduct as a ground for reversal of the judgment. We cannot agree with the People on this point. It is obvious to us that the court considered it to be a part of its duty to render aid in the development of the case of the People and that any protest uttered by defendant’s attorney would have been unavailing. It is not for lawyers to instruct judges as to their judicial duties. Defendant’s attorney would have had to be on his feet as much of the time as he would have been seated if he had attempted to do so. Throughout the trial, defense counsel was respectful toward the court and the
witnesses. We do not believe it would have been in the interests of his client to interpose continuous objections or to otherwise express disapproval or criticism, of the court’s actions and thus run the risk of incurring the disfavor of the jurors, and perhaps of the court. We do not doubt that to utter a protest every time the defense was hurt by an answer to the court’s questions or to insist that the court desist from its procedure would have been a tactical mistake.
(People
v.
Mahoney,
201 Cal. 618 [258 P. 607].)
We return to the first point previously mentioned, namely, the error in the admission of the rebuttal testimony. As we have stated, that testimony would have been properly received only if the court had granted a motion by the People to reopen their case. There was no such motion. There was no showing by the People which would have warranted reopening the People’s case, after the defense had rested. Defendant had no occasion to resist the motion because none was made. During the questioning of Kalas counsel renewed his previous objection that the rebuttal testimony was inadmissible, and it was again overruled. Had the court excluded the rebuttal testimony of Kalas it would have left out of the case evidence of the statements of defendant which, being before the jurors, could have been deemed by them the most discreditable of all. As we have said, it was error to overrule the objections of defendant.
It should be understood that we are not considering a charge of misconduct as that term is commonly used. It is scarcely necessary to affirm our conviction that the court’s participation in the trial was with the best of motives and without realization that it might have the effect of influencing the minds of the jurors. It is known to all practicing attorneys that when one of their number has been placed upon the bench it requires considerable effort upon his part to develop the patience and impartiality which is an indispensable attribute of judicial conduct. The effort is no doubt more difficult for those who have had extensive training in advocacy, which no doubt was the situation in the present case. We conclude our discussion of this feature of the case by quoting from the opinion of the court in
People
v.
Boggess,
194 Cal. 212 at 241 [228 P. 448], as follows: “There can be no doubt that it is the duty of the trial court, if the exigencies of the occasion require it, to facilitate, by one or more proper interrogatories, the direct and cross-examination of a witness. But for the court to repeatedly take the defendant as a witness out of the hands of his counsel who, as
the record before us shows, was apparently competent, conscientious, and expeditious in his conduct of the case, and proceed along an independent and extensive line of examination and cross-examination is not only not commendable but highly irregular and for the sake of due and orderly administration of justice should not be indulged in. Ordinarily the proper course, and the one generally pursued, is to allow the examination by counsel—direct, cross, redirect and recross —to conclude, and then if anything in the judgment of the trial court remains obscure, which may be material for the jury to know, and it seems desirable that an examination of the witness should be further pressed, then, with perfect propriety, the trial court may, and, indeed, should, intervene so that the ends of justice may be subserved. This, however, should be done with care, particularly where the witness is the defendant in the case, lest the jury should, because of the court’s intervention, and because of that fact alone, indulge in adverse inferences and conclusions from the testimony of the witness. In view of the situation of the evidence in the instant case, considered with reference to the erroneous rulings hereinbefore referred to, and the adverse impressions which the jury undoubtedly received from the court’s intervention in the examination of witnesses in the manner indicated, we are of the opinion that said rulings and intervention, taken together, contributed materially to the conclusion reached by the jury. Judgment is reversed. ’ ’
In our opinion the error in the admission of the rebuttal testimony without giving defendant an opportunity to oppose the reopening of the People’s case and the participation of the court in developing the case of the People deprived the defendant of a fair trial and require the reversal of the judgment.
The judgment and the order appealed from are reversed.
Vallée, J., and Ford, J., concurred.