concurring.
In concurring in the result reached by the majority of the court upon the rehearing and further development of this case, I have this to say:
The rule of decision advocated by Mr. Justice Hudgins seems to me to be supported by the authorities' as a general principle. However, while technically correct, it is not infallible. Its adoption was intended to prevent injustice to a convict and not to injure the cause of justice or the enforcement of law and order. So long as its purpose is observed, it is to be applied. When its purpose fails there is no reason for its application.
The answer to the problem presented in this case is to be *455found in the realities of the record, not in theory. We ought not to sacrifice justice by too strict an adherence to technicality.
The convict shows no injustice or injury to himself by reason of the sentences and judgments complained of. The reason for the rule having failed, its application is not justified. Without the sacrifice of any sound principle, justice, as the primary and moving consideration in this case, demands that the petition for a writ of habeas corpus be dismissed.