(dissenting).
While the trial appears to have been irregular, and the atmosphere of it charged, with feeling, I do not think the errors pointed out by the majority are reversible ones. Counsel for the government invited the judge to view the premises, and one of them was present when the view was made, and the information, whatever it was, given by the sergeant. If the sergeant said anything amiss, this counsel could have cross-examined him then and there, or asked later that the trial be reopened, and the sergeant examined regularly under oath. A counsel for the government was also present when the commissioners were interviewed, and made no objection. The judge differed altogether from the commissioners on the matters he discussed with them, so the interview had no effect on him. His percentages of error were not used by him in his findings, and were apparently mentioned only to show how far wrong he thought the commissioners were in their ideas. The evidence as to offers, as evidence of value, were not objected to, and both sides offered much that might have been excluded in a more careful trial. The figures reached by the judge are well within the sworn evidence properly admitted.
Un Application to File Second Motion for Rehearing.
PER CURIAM.The application of appellees to recall the mandate, to amend the record of the trial court, and for permission to file a second petition for rehearing, is overruled; but the opinion of this court filed December 28, 1944, is amended so that the first sentence of paragraph [4], p. 575, shall read as above.