concurring.—I concur in the judgment. As to the ruling of the court upon the question to the witness Del Gardo, it was clearly erroneous, and the propriety of the question, in my opinion, not open to *143debate. It was also highly material, and the exclusion, of the evidence could not be defended upon the ground that it was within the discretion of the court. But the witness subsequently answered questions to the same effect, and therefore, it can be seen that the ruling though erroneous, was not prejudicial.
As to the instruction refused by the court, and commented upon by Justice Temple, it was perhaps not suffi- ■ ciently explicit in some respects, but is not, in my opinion, open to the second ground of objection stated by him. Its refusal was justified, however, upon the ground that there was no evidence to "which it was pertinent.
Rehearing denied.