I concur in the result, but hold the instruction was not erroneous.
Christianson, Oh. J.While I believe it would have been better if the instruction referred to in ¶ 2 of the syllabus had not been given, it is difficult to understand how honest, intelligent, and reasonable men could have been misled thereby.
Although I am unable to find any specific ruling that can be said to be prejudicial to the defendant, a careful examination of the record rather impresses me with the view that the interests of justice will probably be best subserved by ordering a retrial of the action.