dissenting.
The decision in this case, as I understand it, turns upon *853an error in an instruction given by the trial court which is set out in the opinion.
I agree that the instruction is subject to the criticism stated in the opinion. In view of the entire record, it does not seem to me that the jury were mislead by the instruction, and therefore the error was without prejudice.
I respectfully dissent from the conclusion of the majority of the court.
Morrissey, C. J., and Dean, J., concur in this dissent.