A rehearing was granted and briefs were permitted to be filed in this cause on the question of whether or not the conduct of the prosecuting attorney at the trial constituted harmful error.
Section 242 of the Criminal Code, Chapter 19554, Acts of 1939, requires that a defendant be given a new trial if any substantial right of his is prejudiced by misconduct on the part of the prosecuting attorney.
In his trial and argument of the case to the jury, the conduct of the prosecuting attorney was such that Mr. Justices WHITFIELD, TERRELL, BUFORD, and ADAMS are of the opinion that a new trial should be awarded, while Mr. Chief Justice BROWN and Mr. Justices CHAPMAN and THOMAS are of the contrary view.
It follows that the opinion of this Court filed March 18, 1941, is rescinded and a new trial is hereby awarded as to Smith.
It is so ordered.
BROWN, C. J., WHITFIELD, TERRELL, BUFORD, CHAPMAN, THOMAS and ADAMS, J. J., concur. *Page 198