The Mankato free press., 1920-07-23

! prosccutrix to her AFFIDAVIT. The af-
fidavit went directly to the truthful
ness of her testimony and it should
have been left to the jury to give
such weight to it as they saw flt,
| uninfuenced by any opinion the
| judge may have entertained as to
Its weight or-as to Lillygren's ability
as talker.
Three. After the affidavit of the
I, prosecutrix had been received in
evidence, the trial judge called the
clerk OF court as witness and ex-
amined him concerning the time
| when the affidavit was filed In his
onice. and by whom and in what pro-
| ceeding 1t was presented. Defend
ant excepted. The Judge then offer
| ed himself as witness, was sworn,
and testified on the same subject,
and added that the affidavit was
addressed to the Judge of the Dis
trict Court of Blue Earth County but
mad not been presented to him by
Lillygren or the defendant and was
nrst produced in court upon the de-
mand OF the county attorney in a
special proceeding had at the in
stance of the state. Defendant re-
served an exception. The proceed
| Ing referred to was heretofore re-
viewed in State v. District Court.
It's N. w. 908.
The consensus of judicial opinion
Is that one cannot properly play the
| role of presiding Judge and witness
simultaneously. The reasons are
obvious. II objection is made to any
portion Of his testimony, who Is to
rule upon 1t after he has vacated the
bench to become a witness? If. in
the course Of the cross examination
he declines to answer question put
to him. who is to compel him to
answer IL the question is a proper
one? If he should leave the witness
stand and return to the bench. could
he impartially decide upon the ad-
instability of his own testimony or
weight 1t against the testimony of
another? But the most cogent reas-
on why Judge should not become
witness is that If he testifies it must
necessarily be in behalf of one Of
and this tends strongly to influence
the jury and to denrive the party
against whom he testifies of fair and
impartial trial. This and other lreas
ons not necessary to enumerate
have led the courts quite uniformly
to condemn the practice Dabney "
Mitchell. Sc Ala. 495; Estes Bridg-
forth. ia Ala. 221; State v. Rodgers,
20 Ark. rs; Gray " Crockett 35 Kas.
Sc, People v. Dohring, So n. Y. 374;
Powers v. Cook, 4S Okla 43; Matt
land v. Zanga, IA Wash. go; / Green
leaf on Evidence. Sec. 1854: Jones on
Pro. 1145: Chamberlayne. Evid Sec.
576: Wigmore, Evid D. 1926 253O. .
Before giving his testimor1. the
presiding Judge said.
THE record may show that the
witness was not testifying in behalf
of the prosecution or in behalf of
the defendant, but is testifying in
behalf of the court for the reason
that the instrument offered in evil
dence, as read to the jury. appears
to be addressed to the Honorable
Judge Of the District Court of the
County of Blue Earth, and the evil
dence is offered for the protection of
the court and for no other purpose
and for the maintenance of new or
der of proceedings in such court"
In charging the jury, after refer
ring to the fact that he and the clerk
had testified he said.
THAT testimony was not offered
as bearing either one way or the
other upon the question Of the guilt
or Innocence of the defendant in this
case. That testimony was offered
simply and only that you, as Jurors
might understand that the court and
the officers of the court had no con-
nection with that instrument until
1t was produced later on in court in
certain special proceedings that have
been referred to, and that testimony
you will disregard as far as the
question of the guilt or innocence of
the defendant in this case is con-
cerned" ''~
It is urged that. If it was error to
receive the testimony of the presid-
ing judge. the error was cured by
these statements. We are unable to
adopt this view The prosecutrix
testified to the truth Of the accusa-
tion against the defendant He de-
mel it. There were no eve witnesses
Her affidavit impeached her credibil-
hardly fail to gather from the judges
testimony that the affidavit was of
questionable value AS evidence in
defendants favor. The charge could
not remove the impression made SIP
on their minds by his testimony. De-
fandant may Re guilty of the offense
of which he is accused, but he has
not had the fair. temperature and
impartial trial which is the right of
everv man charged with a crime in
voIving his liberty. The jury was
satisfied of the defendants guilt. and
the norton of the evidence which
has been returned here tends quite
strongly to sustain the conviction,
but an appellate court may not as
sumo the functions of the jury and
sustain the conviction because it
concludes that the defendant is
guilty anyway. IF error was COM
mftted on the trial. the natural ten
dency OF which was to prejudice the
accused. 1t is ground for a new trial
unless it appears that he could not
have heen prejudiced thereby. State
v. Williams, 96 Mimi 351; Dun. Dig.
Sec. 2490
Because of the errors we have
pointed out, there must be new
trial. The Judgment appealed from
In. therefore. reversed and new
trial granted.