(concurring specially): I concur fully with paragraphs 1 and 2 of the syllabus and the corresponding parts of the opinion.
As to paragraph 3 of the syllabus and the corresponding part of the opinion, I concur fully in the disapproval of the instruction given. It is with reluctance I concur in holding that the giving of the instruction complained of formed no basis for reversible error. I do so concur solely because, in addition to the reasons set out in the opinion, the motion for a new trial did not specify as one of the grounds the giving of the instruction of which complaint is now made, the complaint being rather that “the jury was influenced by the court to render their verdict on account of abuse of discretion of the court in polling the jury in open court.”
Smith and Wedell, JJ., join in the foregoing specially concurring opinion.