concurring specially. The excerpt from the charge dealt with in the third headnote is technically subject to the criticism made, but, in view of the charge in its entirety, is not cause for the grant of a new trial.
John W. Bennett, E. K. Bennett, and W. G. Parker, for plaintiff' in error. George M. Napier, attorney-general, A. B. Spence, solicitor-general, and T. R. Gress, assistant attorney-general, contra.