Dissenting. — I concur to the extent of holding that the first instruction and the first paragraph of the second instruction are not erroneous, basing this opinion upon the former decisions of this court cited in the majority opinion. I also concur in holding that the second paragraph of the second instruction is erroneous. Regardless of my own opinion as to the weight of the evidence, I am not satisfied- that the case is so clear that the jury could not, under their oaths, have returned any other verdict. I am therefore not satisfied that the defendant cannot be said to have been prejudiced by the erroneous instruction. For this reason I dissent from the result arrived at in the majority opinion.