In this cause the Court was divided in its original opinion filed herein on September 13, 1934, four Justices favoring reversal and two Justices favoring affirmance. *Page 552 By special leave of Court first had and obtained, oral argument was allowed before the Court en banc on defendant in error's petition for a rehearing and such oral argument was duly had herein.
After hearing arguments of counsel for and against the granting of the petition for a rehearing herein, Mr. Justice ELLIS, Mr. Justice TERRELL and Mr. Justice BROWN are of the opinion that the petition should be denied. Mr. Chief Justice WHITFIELD, Mr. Justice BUFORD, and Mr. Justice DAVIS are of the opinion that the petition for rehearing should be granted and the judgment thereupon affirmed.
There being no prospect of a change in the personnel of the Court and there likewise being no prospect of a change in the views of the members of this Court as now constituted, the original judgment of reversal entered herein on September 13, 1934, must be allowed to stand and the cause remanded to the court below with directions to award a new trial and have further proceedings therein as heretofore by the judgment of this Court directed to be had. Let the mandate of this Court be issued accordingly.
WHITFIELD, C. J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J. J., concur.