(concurring)'.
While I concur in the result reached in the opinion of Judge ENGlish, I cannot concede that the instruction *528asked by the defendants, and refused by the court, was proper to be given, and that the court erred in refusing- it. The form in which the instruction was offered was calculated to mislead the jury, as I think, also, was “the last instruction asked for and given at the instance of the Slate.”