concurring specially: I concur in the ruling made in the third headnote only because I am bound by the majority opinion filed in the case of Smoak v. State, supra, wherein the case of Heflin v. State, 88 Ga. 151 (14 S. E. 112, 30 Am. St. R. 147), was distinguished. My views are embodied in a dissent filed by me in the Smoak case.