dissenting.
The evidence sustained a finding defendant police chief did on occasions caress the breast of and at least on one occasion, run his hand up the skirt, on and around the vaginal area of an employee policewoman. He was tried and convicted of performing a lewd caress on the body of another person.
I cannot agree that the charge given was harmful error. It was equivalent to the Code definition. If anything, it was more favorable, and less all-encompassing, than the Code definition, and the jury could not have been misled. There is absolutely no contention that the acts were viewed in a place expected only to be seen by members of the actor’s family or *75household.
There being no constitutional rights involved herein, I would apply the "highly probable” test that the error, if any, did not contribute to the judgment. Johnson v. State, 238 Ga. 59-61 (230 SE2d 869). Justice Cardozo’s famous pronouncement in Snyder v. Massachusetts, 291 U. S. 97, 122 (54 SC 330, 78 LE 674,687), is also applicable: "But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true... There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.”
I am authorized to state that Judge McMurray joins in this dissent.