Rigney

— Defendant appeals from a judgment entered on a jury verdict convicting him of two counts of assault with a deadly weapon and one count of assault with a deadly weapon with intent to commit murder.

Defendant, a hospital corpsman in the United States Navy, was married to Janet Rigney, one of the prosecuting witnesses. Janet secured an interlocutory decree of divorce in July 1958. The decree awarded her custody of their infant daughter and gave defendant the right of reasonable visitation. He customarily visited the child one afternoon each weekend at a San Diego hotel where Janet’s father resided. On the afternoon of Saturday, October 11, 1958, defendant arrived at the hotel to visit the child, but Janet had failed to bring her. After the time for the visit had elapsed, defendant drove to Janet’s apartment in La Mesa, arriving there between 4:30 and 5. He found the front screen door locked and remained outside. Janet and Gaither Charles Brown met him at the door. Brown said that he had heard that defendant had been looking for him and asked if defendant wanted to see him. Defendant replied, “No, I don’t care what you do; I came over to see the baby.” He then asked Janet why she…

— I dissent. In my opinion the record in this ease demonstrates that the trial judge aligned himself with the prosecution by assuming the role of prosecutor, and clearly indicated to the jury his disbelief in the main defense of the defendant. The two witnesses were constantly interrupted by the trial judge, who then exhaustively, argumentatively and repetitiously examined them almost to the complete exclusion of the district attorney. Such examination was officious and unnecessary. It necessarily deprived the defendant of that fair and impartial trial guaranteed to him by the Constitution of this state and of the United States.

The majority opinion correctly and fairly states the facts. It also sets forth the general principles applicable to the examination of witnesses by the trial judge, and briefly mentions the limitations on that power. The majority opinion correctly points out that while a trial judge, in a criminal ease, has the power and duty to elicit and to clarify the testimony he “must not become an advocate for either party or under the guise of examining witnesses comment on the evidence or cast aspersions or ridicule on a witness.” It is also pointed out that…