
    SUPREME COURT—APP. DIVISION—FIRST DEP.,
    Nov. 1910.
    THE PEOPLE v. SALVATORE ACARDO—IMPL., ETC.
    (140 App. Div. 929.)
    Larceny—Trial—Improper Conduct of Judge.
    Where the court frequently throughout the trial Interrupts examination of witnesses to ask questions, apparently for the sole purpose of disparaging and discrediting defendant—due administration of justice requires a reversal in order that defendant may have a fair and impartial trial.
    Appeal from a judgment of conviction of the Court of General Sessions of the Peace in and for the county of New York and from an order denying a motion for a new trial and in arrest of judgment.
   Miller, J.:

The defendant was convicted of stealing a horse and wagon; the wagon, freshly painted, was found in his possession two days after the theft. His defense was that he bought the wagon from one Bacehi. We should have no hesitation in affirming the judgment were it not for what we consider improper conduct on the part of the trial justice. The court frequently throughout the trial interrupted the examination of witnesses to ask questions, apparently for the sole purpose of disparaging the defendant and his witnesses and discrediting the defense. One example will suffice. A witness for the defendant had stated that he (the witness) knew that the defendant was going to be engaged in business, whereupon the court interrupted with the question: Q. What was the business 1 Buying stolen horses ? ” That question and numerous others having a similar tendency show that the case was prejudged by the court, and, in all likelihood, the verdict of the jury hut reflected that prejudgment. The defendant was entitled to have the question of his guilt passed upon by the jury, hut they were not likely to give that question much independent consideration after having been told by all sorts of suggestive questions that, in the opinion of the court, the defendant was a horse thief and his defense a manufactured one. As a general rule it is better to allow counsel to examine witnesses without interruption, though at times, in the interest of truth and justice, the court may need to interrupt for the purpose of eliciting some relevant facts. But the interruptions disclosed by this record could have had no such purpose, and they were so highly prejudicial as to take from the trial even the semblance of judicial inquiry. The Court of Appeals has frequently admonished prosecuting officers with respect to unfair conduct on their part in the trial of eases. Such conduct on the part of the trial judge does incalculably more harm, because it carries weight with the jury, who might perhaps pay no heed to improper remarks of counsel. We regret the necessity of reversing this judgment, but feel that the due administration of justice requires a reversal, to the end that the defendant may have what the law accords him, a fair and impartial trial. The judgment and order should he reversed and a new trial granted.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment and order reversed and new trial granted. Settle order on notice.

In the Matter of Joseph J. Madden.—Order affirmed.

In the Matter of Lester W. Eisenberg.—Order affirmed.

In the Matter of Nicholas P. Sinnott.—Order affirmed.

In the Matter of Albert R. Lesinsky and John H. B. Hanify. —Order- affirmed. 
      See Note, Vol. 21-49.
     