(specially concurring). I am in thorough ■accord with the views expressed in the opinion in chief, ■except with its attempt to distinguish the present case from the case of Mayor, etc., v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213, and the later case of State v. Ratliff, 63 So. 538, decided upon the authority thereof without any further discussion of the question here and there involved. These cases, in so far as the point here under consideration is concerned, are squarely in conflict with the views expressed in the opinion in chief, were wrongly decided, are by the opinion in chief necessarily, and, in my judgment, in order that they may no longer mislead, should be expressly, overruled. An examination of these cases will disclose that the ■questions there presented to the. court were not those set out in the opinion in chief, hut were the identical ■questions involved in the case at bar.
In the brief of counsel for appellee it is stated that that portion of the opinion in the ease of State v. Ratliff, dealing with the question here under consideration was obiter dicta for the reason that Bailey did not join *264in the appeal. It is true that from the report of the case, contained in 66 Southern Reporter, it appears that Bailey did not appeal, but this is in error. He did appeal, the record thereof being separate from the record containing the state’s appeal, but all of the cases were argued at the same time, no briefs whatever being submitted with Bailey’s record.