(dissenting-) •
In my judgment the record disclosed a case which should be reversed and a new trial awarded. I find no proof which warranted the court in submitting to the jury the question whether this is “a case of absence of reasonable ground, probable cause, plus the infusion into it of malice, of evil thought, the bad heart idea,,” and instructing them “that if in your judgment this is that kind of a case then to use the metaphor I used before, you can apply the ’gad’ to this defendant and measure the weight of the whip which you think ought to be applied and the number of times you think it ought to be applied by the amount of the verdict which you render” — ■ language which in my judgment was not fitting in a charge. Because I cannot join in putting the stamp of approval on such language by an affirmance of a judgment based on it, I am, with great regret, but from a sense of duty, forced to record my dissent.