concurring and specially concurring.
I concur with the result reached in both parts of the majority opinion. I do so as to Part II because I do not view failure to instruct on the issue as constituting prejudicial error. It cannot be demonstrated if, and in what way, the verdict here would have been different had the jury been instructed in the manner urged by the dissent. In my view, however, justice would best, and most clearly, be served in cases such as this if juries were instructed along the lines suggested in the dissenting opinion.