I think the opinion prepared by SAMFORD, J., on the original submission of this case is correct in its conclusions. Even if the affidavit made by the *Page 642 sheriff had no place in the trial, as so vigorously asserted by my brothers in the opinion on rehearing, yet I do not think its admission, taken in connection with the very explicit oral charge of the trial court, and in connection with the whole conduct of the trial, as shown by the record, was so hurtful as to call for a reversal of the case. But if I should be in error as to this view, surely I do not desire to assert that the solicitor's statement that the affidavit was offered in evidence for the purpose of showing when the prosecution was begun was not a "bona fide" statement, and that the facts did not tend to impress one that "such statement was genuine and sincere and in accord with the recognized high rules of practice." For all I know, and without knowing I would assume that, the solicitor was honest in his efforts to obtain a conviction.
I dissent.