Henry Lee Bryan v. Clarence Jones, Sheriff, Henry Wade, District Attorney, Fidelity & Deposit Co.& Lena Giddens

GEWIN, Circuit Judge, with whom THORNBERRY, Circuit Judge,

joins, specially concurring:

I concur in the reasoning and the result of the majority en banc opinion with one exception. I do not approve the criticism of our opinion in Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). In my judgment that case is distinguishable, factually, procedurally and substantively from the case sub judice.