State v. Bolyn , 143 S.C. 63 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] January 4, 1928. The opinion of the Court was delivered by The defendant, S.P. Bolyn, who was a director and cashier of the Planters' Bank of Marion, S.C. at the time the said bank closed its doors for business, was charged under an indictment, containing two counts, with the violation of Section 134 of the Criminal Code in the first count, and willful perjury in the second count. The grand jury of Marion County returned a true bill on the indictment June 8, 1925, whereupon the defendant, by his counsel, moved to change the venue of the case for unwarranted prejudice against the defendant created through the closing of this bank. The motion was granted, and the case was transferred from Marion County to Horry County. On June 9, 1925, the case came on for a hearing before Hon. Sam T. Lanham, Special Judge, presiding in the Court of General Sessions for Horry County. When the case was called, the defendant moved for a continuance upon the grounds hereinafter referred to, which motion was refused. The defendant was then placed in the dock and subjected to formal arraignment. At the conclusion of the arraignment, the defendant moved to quash the indictment as to both counts, and also demurred to the indictment, which motions the special presiding Judge overruled and ordered the arraignment to proceed. The defendant then, through his counsel, moved the Court to require the State to elect upon which count it would proceed. This motion his Honor also overruled and ordered a jury impaneled. The evidence offered by the State was taken subject to objection, from time to time, duly noted. At the conclusion of the state's case, the defendant, through his counsel, moved for a direction of a verdict. The motion was refused, whereupon the defendant introduced his testimony, and, at the conclusion of which, the defendant duly submitted certain requests to charge. Upon the case being submitted to the jury, the jury returned a verdict of guilty. A motion for a new trial was made on behalf of the defendant, but the motion was refused and the defendant was sentenced to pay a fine of $1,000 and serve a period of 6 months in the State Penitentiary. The defendant has appealed to this Court, imputing error to his Honor the presiding Judge in the particulars set forth under his exceptions.

Under the first exception, the defendant alleges that his Honor the presiding Judge erred in ordering the case to trial, the defendant having moved for a continuance of the case until the following morning upon the ground that the assistant state bank examiner, Mr. Frank H. Daniel, who had the bank under his supervision for several months before and immediately preceding the closing of the same, had been subpoenaed as a witness for the State, and for that reason had not been subpoenaed by the defense, stating to the Court that counsel for the defense had just learned that Mr. Daniel was not present, and that Mr. Daniel was a most vital, material witness for the defense. The record bears out this statement of facts. Counsel for the State stated to the Court that Mr. Daniel had been subpoenaed by the State but that he had excused Mr. Daniel from attending Court in order that Mr. Daniel might go to New York to fill an engagement, stating that he did not know that counsel for the defense desired Mr. Daniel as a witness, and stated further that the State had the documents and another official present. While the Court fully appreciates the "consternation" experienced by the defendant's counsel in having to go to trial without the presence of this witness, and also appreciates the great disadvantage to which the defendant probably was placed, the witness having not been subpoenaed by the defense to testify for and on behalf of the defense, this Court cannot hold that the presiding Judge abused his discretion in refusing defendant's motion. To so hold would establish a dangerous precedent which would likely lead to great harm and abuse. The well-recognized rule required the defendant to subpoena the witness for the defense. Therefore this exception is overruled.

The second, third, fourth, and fifth exceptions impute error to his Honor the presiding Judge in refusing defendant's motion to quash the indictment and in overruling the demurrer to the indictment. While we are of the opinion that the indictment should have contained additional allegations — for instance, both counts should have given the name of the official who administered the oath the defendant is alleged to have taken, and the second count, in addition, should have alleged facts sufficient to enable the defendant to know whether he was to be tried for common-law perjury or for the violation of some Section of the Code — a careful reading of the record convinces us that the defendant was not prejudiced by the absence of this information in the indictment. Therefore these exceptions are overruled.

The sixth exception, which imputes error to his Honor in overruling defendant's motion to require the State to elect upon which count in the indictment it would proceed to trial, cannot be sustained under the decisions of this Court, and defendant's counsel properly does not press the exception further. The same is therefore overruled. See the following decisions of this Court:State v. Nelson, 14 Rich., 169; 94 Am. Dec., 130; State v.Scott, 15 S.C. 434; State v. Sheppard, 54 S.C. 178;32 S.E., 146; State v. Bouknight, 55 S.C. 353; 33 S.E., 451; 74 Am. St. Rep., 751; State v. Woodard, 38 S.C. 353;17 S.E., 135; State v. Hutchings, 24 S.C. 142; State v. Smith, 18 S.C. 149; State v. Sharpe, 132 S.C. 236;128 S.E., 722; State v. Jones, 86 S.C. 17; 67 S.E., 160.

The seventh exception imputes error to the presiding Judge "in admitting in evidence the books and records of the bank, consisting of Exhibits C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, and Z, and 1, 2, 3, 4, 5, and 6, over objection of defendant, because of the total absence of evidence tending to show that such records had been made by the defendant." An examination of the transcript of record discloses that, while these books and records admitted in evidence over the objection of the defendant purported to constitute the books and records of the bank, there is no proof that the defendant made the entries therein contained. The witness O.K. La Roque, a witness for the State, testified that he had been officially connected with this bank as liquidating agent for the receiver, the state bank examiner, since January, 1925, and was at the time of the trial still occupying that position, and that, as a representative of the bank examiner of this State, he had custody of the documents of the Planters' Bank in his possession. This witness further testified that the defendant was in temporary charge of the bank as a representative, he assumed, of the state bank examiner, and turned these books and records over to him, the witness, Mr. La Roque. On this showing, the books and records were admitted in evidence over the objection of the defendant. There was no evidence that the defendant made the entries in these books and other records, and no evidence that he was in any way responsible for the entries made therein. On the other hand, the testimony tended to show that the entries were made by other employees of the bank. Mr. H.A. Lewis was vice president in charge of the bank, and the defendant was cashier under him; J.O. Lewis was assistant cashier, and there were also other employees who worked in the bank. The witness did not know who made the entries in these books and records, but was under the impression that all of the employees in the bank might have worked on the books. In our opinion, the showing was insufficient for admission of the books and records in evidence and that his Honor erred in admitting them in evidence. Therefore this exception is sustained. In support of this position, see the following decisions of this Court:Tunno v. Rogers, 1 Bay, 480; Rawleigh v. Thompson, 122 S.C. 43;114 S.E., 702; Rhodus v. Dukes, 128 S.C. 354;122 S.E., 872; Grocery Co. v. Dannelly, 93 S.C. 580;77 S.E., 706; Ann. Cas., 1914-D, 489; Supply Co. v. Jones, 87 S.C. 426;69 S.E., 881. Also see 17 Cyc., 293, and 388.

Exceptions 8, 9, 10 and 11 "relate to the examination of witnesses with respect to the introduction in evidence of and the failure to strike out and properly instruct the jury with respect to the publication of the bank's statements in the Marion Star on October 6 and October 22, 1924."

On the testimony of Mr. O.K. La Roque, a witness for the State, that he knew the signature of the defendant, a statement purporting to have been signed by defendant and directed to the state bank examiner, and purporting to have been probated by E.R. Brown, notary public, October 15, 1924, was admitted in evidence. The state next introduced in evidence the books and records referred to under the consideration of exception 7, there being no testimony offered tending to show that the defendant made the entries in these books and records, nor was there any evidence that the defendant was responsible for the entries contained therein.

Following this, the state examiner witnesses with reference to the publication by the defendant of statements published in the Marion Star, probated by R.N. Johnson, notary public. The following appears in the record:

Mr. P.W. Johnson, a witness for the state and examined by state's counsel, testified as follows:

"Q. Mr. Johnson, are you the editor of this paper which is marked for identification? A. I am, sir.

"Q. And you were at the date of that issue? A. I was.

"Q. What is that issue, the date? A. October 22, 1924.

"Q. Does that issue carry a statement of the Planters' Bank? A. Yes, sir.

"Q. Is that it at the bottom of that page? A. Yes, sir. (Offered in evidence.)

"Mr. Arrowsmith: There is no evidence that it came from this defendant.

"Q. Do you know why that statement was published? A. That statement was published pursuant to a paper supplied to me by the Planters' Bank.

"Mr. Arrowsmith: The bank is not on trial.

"The Court: Frankly, gentlemen, I think that is the nicest point that has been raised so far on the trial.

"Q. Do you know or not that Mr. Bolyn was in active management and control of that bank or not? A. I do.

"Q. Will you state whether or not Mr. Bolyn lived in that very community where that paper circulated? A. Yes.

"Q. Did you have dealings with the bank yourself? A. Sometimes; yes, sir.

"Q. At or about this time will you state whether or not you dealt with Mr. Bolyn, speaking for the bank. A. Well, not frequently, but from time to time.

"Q. Do you recall whether you procured that or a similar statement from Mr. Bolyn himself? A. I have procured statements from Mr. Bolyn — I cannot swear that I obtained this one from him.

"Q. But similar statements? A. Yes, sir.

"Q. How often, will you state? A. I cannot say how often from Mr. Bolyn, Mr. Miller. The bank usually published a statement about four times a year, and I have had Mr. Bolyn to bring those statements to my office and there have been times when other employees of the bank would bring them in.

"Q. Now, Mr. Johnson, will you state whether or not Mr. Bolyn ever controverted the statement contained in that paper? A. Not to me, sir.

"The Court: I want to hear Mr. Arrowsmith.

"Mr. Arrowsmith: I have nothing further, your Honor.

"The Court: All right. The objection is overruled, and the paper will go in evidence."

Further on, the witness P.W. Johnson testified as follows, on examination by counsel for the State:

"Q. I hand you what purports to be a statement of the condition of the Planters' Bank of Marion and ask you if you know by whom that statement was made? A. This statement is made in the handwriting of S.P. Bolyn, signed by him.

"Q. Sworn to before whom? A. Mr. R.M. Johnson, notary public.

"Q. Do you know his signature? A. I do.

"Q. Was that statement formerly in your possession? A. This is a statement which was placed in my hands for publication in my paper, and which appeared in my paper on the 22d of October, 1924, and to which I have sworn on the back.

"The Court: Do you recall my ruling at the morning hour that this would have to be connected with the defendant? A. I am speaking of the publication in the paper.

"Q. Did you get that from Mr. Bolyn? A. I could not say. I do not recall.

"Q. You say that is his handwriting? A. Yes, sir; and those figures published in my paper were taken from this statement by me, sworn to by me and published just as they appeared on that. (Paper offered in evidence. Objected to.)

"The Court: You are going to have to show, or else I am going to rule out, the newspaper and that feature of the case that this defendant sent the statement to the newspaper for publication.

"Q. May I ask you who paid for the publication of this notice? A. The Planters' Bank.

"Q. Do you know whose check? A. I do not.

"Q. Or what representative of the bank paid for it? A. I do not.

"Q. Can you now recall whether or not S.P. Bolyn sent this particular statement? A. It is impossible for me to say.

"Q. Your testimony was this morning that he had, on occasions, personally brought them to your office. A. Yes, sir; at times he has. (Paper offered in evidence for the purpose of showing publication of misinformation about the affairs of the bank, in violation of law.)

"The Court: The defendant is brought here to answer criminally, and all evidence relating to publications in newspapers will be excluded unless it is shown that it was published at his direction or his instance. Unless it is connected up with him, as I announced, I will exclude it and I so instruct the jury.

"Mr. Miller: I offer this as another publication ofmisinformation about the affairs of the bank.

"The Court: What date is that?

"Mr. Miller: Referring to the Planters' Bank, October 6, 1924. (Objected to.)

"The Court: I am going to admit it with the reservation already announced in my ruling with reference to the newspaper publication. Up to this date it goes in, but I think counsel understands the ruling. I endeavored to make myself clear on that point. (Paper marked Exhibit No. 9.)"

Cross-examination by Mr. Arrowsmith:

"Q. Mr. Johnson, I have not had the privilege of seeing the paper that was last handed to you; is that a statement identical with that published in the paper which you identified this morning? A. Yes, sir; these figures were supplied me by the bank.

"Q. And that is identically the same as it appeared in the paper? A. Well, I have not checked it.

"Q. The point I am trying to get at — look at the newspaper and see if the statement published therein appears to have been probated by R.N. Johnson. A. This statement in the newspaper is probated by R.N. Johnson, notary public.

"Q. You frequently called at the bank and got statements, did you not? A. I do not recall ever going for them. We never know when they are coming in, Mr. Arrowsmith.

"Q. And other people connected with the bank carried statements to your office, didn't they? A. I have had them by messenger and by mail.

"Q. Yes, sir ; it is hardly probable that in the fall of the year an officer of the bank would make a personal delivery of an article of this kind, is it? A. I could not say. They are never too busy to walk a half block. If he had it in his hand and his clerk was busy, I imagine he would bring it around.

"Q. Sometimes they came by mail? A. Yes, sir.

"Q. So, therefore, there were various avenues to get the information to you? A. Yes, sir."

Then counsel for the defendant made a motion, and the following transpired:

"Mr. Arrowsmith: If your Honor pleases, I move to strike out at this time the two exhibits offered by the State, purporting to have been probated by R.N. Johnson.

"The Court: I would not wish to rule on that until the State finishes its case. You remember my ruling. If it is renewed at the close of the State's case, I will rule on it.

"Mr. Miller: We have shown that those statements were in the handwriting of Mr. Bolyn.

"The Court: Yes; but what you are endeavoring to prove is that the publication was at his instance and direction.

"Mr. Miller: I ask that those exhibits remain in the record as being some evidence of the publication in his handwriting, over his own signature.

"The Court: I now grant Mr. Arrowsmith's motion to exclude from the evidence the issue of the Marion Star, dated October 22, 1924, and the publication therein, after hearing the statement of counsel for the State that they could not comply with the ruling by showing that the publication was made at the instance of the defendant. I will now hear you on the other proposition. (Argument pro andcon.)

"The Court: I am going to let it go to the jury; it is admitted in evidence."

The exhibit which his Honor refused to strike from the record was the statement published in the MarionStar, dated October 6, 1924. The state's witnesses had already testified that Mr. H.A. Lewis was vice president and in charge of the bank in question, and that the defendant worked under Mr. Lewis, and further, there were other employees who did an active work in the bank. Evidently, there were many sources from which the MarionStar could have procured these statements which were published in the Marion Star, but, be that as it may, there is absolutely no evidence to connect the defendant with the publication of these alleged statements. Both of these statements purport to have been probated by R.N. Johnson, whereas the statement alleged in the indictment, as testified to by the State's witnesses, was probated by E.R. Brown, a notary public. In fact, as far as we have been able to ascertain from the transcript of the record, these statements probated by R.N. Johnson and published in the Marion Star have no connection with the charges alleged in the indictment against the defendant. As stated by State's counsel, it seems to have been the purpose of the State to show the "publication of misinformation about the affairs of the bank in violation of law." Counsel for the State said further, "I offer this as another publication of misinformation about the affairs of the bank." Such testimony and such a statement we consider highly prejudicial to the defendant. It was incumbent upon the defendant to answer the charges contained in the indictment and no other. It is true that his Honor granted a motion to exclude from the evidence the issue of the Marion Star dated October 22, 1924, and the publication therein. In doing so, his Honor failed to instruct the jury not to consider anything in connection with this statement and not to consider any of the testimony in connection therewith. It will be observed, also, that the issue of October 6, 1924, and the publication therein contained were not excluded. The error that had been committed by permitting the testimony and admitting in evidence the statement of October 22d could not be removed by his Honor simply stating that he would grant now Mr. Arrowsmith's motion to exclude from the evidence this issue of the MarionStar dated October 22, 1924, and the publication therein. See Templeton v. C. C.R.R., 117 S.C. 44;108 S.E., 363. It is difficult at best to correct an error made during a trial in the admission of testimony in any case, and especially is this true when the matter involved is of the nature under consideration in this case. Special care should be taken in such cases to instruct the jury not to consider the matters excluded so that the jury will clearly understand its duty in such instances. Counsel for respondent takes the position that it was incumbent upon defendant's counsel to request special instruction if not satisfied with the instruction given by his Honor. In matters of this nature, we do not think counsel should be called upon to make such requests, and defendant should not lose his rights of appeal because of defendant's counsel having not presented a request as to this. We think that his Honor was in error in the particulars set forth under these exceptions 8, 9, 10, and 11, and the exceptions are sustained.

The twelfth and thirteenth exceptions impute error to his Honor the presiding Judge in refusing to grant defendant's motion for a direction of a verdict of not guilty. In passing upon these exceptions, it is necessary to consider the requisite ingredients of the crime charged under each count in the indictment. The first count admittedly charges a violation of Section 134 of the Criminal Code of 1922, which reads as follows:

"Any officer or stockholder of any corporation who shall knowingly and willfully make, or cause to be made, any fraudulent misrepresentation as to either capital, property or resources of the corporation, shall be held guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two thousand dollars, or by imprisonment for not longer than two years, or both, at the discretion of the Court."

In order for the defendant to be convicted under this Section of the Code, it must be proved that he, as a stockholder or an officer of the Planters' Bank of Marion, made or caused to be made a "fraudulent misrepresentation" as to the capital, property, or resources of this bank. What constitutes a "fraudulent misrepresentation?" We quote briefly from some of the standard works as to what constitutes fraudulent misrepresentation. In 2 Bouvier's Dictionary, Rawles Revision, 423, we find the following statements of the law on this subject:

"The statement made by a party to a contract that a thing relating to it is in fact in a particular way when he knows it is not so" is a misrepresentation. "The misrepresentation must be both false and fraudulent in order to make the party making it responsible to the other for damages."

"Misrepresentation as to a material part of the consideration will avoid an executory contract."

"A misrepresentation, to constitute fraud, must be contrary to fact; the party making it must know it to be so."

"To be material, the misrepresentation must be in respect to an ascertainable fact, as distinguished from a mere matter of opinion, judgment, probability, or expectation, if it is vague and indefinite in its nature and terms or is merely a loose, conjectural, or exaggerated statement, it is not a material misrepresentation."

"Mere honest expression of opinion will not, as a rule, be regarded as fraud either as a basis for an action of deceit, or a ground for setting aside a contract, although the opinion may prove to be erroneous."

"One who makes a false statement, which he believes to be true, incurs no liability; if the belief is honest, it makes no difference what their grounds are."

In 26 Corpus Juris, 1062, we find the following statement of the law as to fraud and the elements and essentials:

"It may be stated generally that the elements of actionable fraud consist of (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker's knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted upon by the person and in the manner reasonably contemplated. (6) The hearer's ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. (9) And his consequent and proximate injury."

20 Cyc., 13, states the rule in the above language:

In the case of Raser v. Moomaw, 78 Wn., 653;139 P., 622; 51 L.R.A. (N.S.), 709, the Court states that the essential elements necessary to constitute actionable fraud and deceit are as follows: (1) That the defendant made a material misrepresentation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the plaintiff; (5) that the plaintiff acted in reliance upon it; and (6) that he thereby suffered injury.

In 12 R.C.L., 240, the rule is stated thus:

"The essential elements required to sustain an action for deceit are that the representation was made as a statement of fact which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with the intent to deceive and for the purpose of inducing the other party to act upon it; and that he did, in fact, rely on it and was induced thereby to act to his injury or damage. All of these ingredients must be found to exist, and the absence of any one of them is fatal to a recovery."

In 3 Words and Phrases, 2960, we find the following:

"It is said in Bigelow, Frauds, 466, that a fraudulent misrepresentation is made up of five elements: (1) A false representation; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) intention that it should be acted upon; (5) acting upon it with damage."

We also call attention to the following decisions of this Court which are in accord with the above statement of the law: Campbell v. Kinloch, 9 Rich., 300; Chisolm v.Gadsden, 1 Strob., 220; 47 Am. Dec., 550; Holmes v. Caldwell, 10 Rich., 311; Poag v. Charlotte Oil Mill, 61 S.C. 190;39 S.E., 345; Monro v. Gairdner, 3 Brev., 31; 5 Am. Dec., 531; Lebby v. Ahrens, 26 S.C. 275; 2 S.E., 387.

It being a universally recognized principle that penal Statutes must be strictly construed, Section 134 of the Criminal Code, on which the first count in the indictment is based, must be construed strictly, and, in the absence of a Statute placing a construction on the words "fraudulent misrepresentation," in passing upon defendant's exceptions, these words must be construed in the light of the salutary rules quoted in the authorities cited above. If a defendant is entitled to the application of these principles in determining property rights, then, surely a defendant whose liberty is at issue is entitled to no lesser rights. Adopting the rule quoted under Words and Phrases, supra, we have the following:

"Fraudulent misrepresentation is made up of five elements: (1) A false representation; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) intention that it should be acted upon; (5) acting upon it with damage."

Considering the first necessary element — "a false representation" — we find no proof to establish the same. We have examined the transcript of record carefully, and the only testimony tending to establish this element was given by the witness, Mr. O.K. La Roque. The testimony given by Mr. La Roque on this point was acquired from books and records improperly admitted in evidence, which we have already discussed under exception 7. With this testimony out of the record, which we think should have been excluded, there is no evidence to prove that the defendant made "a false representation," which is the first element to be proved in order for the defendant to be convicted under the first count. Therefore it follows that a verdict should have been directed for the defendant under the first count in the indictment, it being necessary to establish each element in order for the defendant to be convicted.

As to the other four elements necessary to be established before there could be a conviction under the first count, it is only necessary to state that, there being no proof that the defendant made "a false representation" as shown above, it follows that these four additional elements have not been established.

For instance, take the second element, to wit, "knowledge by the person who made it of its falsity." If no "false representation" was made, the second element does not exist. It is not established. So it is with the three remaining elements. In our opinion, the defendant was clearly entitled to the direction of a verdict under the first count of the indictment.

The thirteenth exception imputes error to his Honor the special presiding Judge in refusing defendant's motion to direct a verdict as to the second count in the indictment. While there is no allegation contained in the indictment as to whether it was intended to charge the defendant with common-law perjury or the violation of a Section of the Code, it appears from the transcript of record that the defendant was tried under Section 335 of the Criminal Code, which reads as follows:

"Whoever shall, willfully and knowingly, swear falsely in taking any oath required by law, and administered by any person directed or permitted by law to administer such oath, shall be deemed guilty of perjury, and, on conviction, incur the pains and penalties of that offense."

Under the authority of the case of State v. Byrd, 28 13, 15 S.C. 18; 4 S.E., 793; 13 Am. St. Rep., 660, in order to have a conviction under this Section, it is only necessary to prove that the defendant, under oath, swore to the statement of facts alleged in the indictment, and that the statement that he swore to was a "false representation." Assuming that the defendant was duly sworn and, under oath, made the statement alleged in the indictment to have been made by him, did he swear falsely — did he make a "false representation?" The question has been answered in the consideration of the twelfth exception. Holding that the books and records of the bank, admitted in evidence, and the testimony of the witness Mr. La Roque, as to the entries therein contained, should have been excluded, the transcript of the record discloses no proof that the defendant made "a false representation," and the defendant could not be convicted under this count. The other question raised under this exception as to what constitutes an oath, and whether or not the defendant was duly sworn and under oath made the alleged statement contained in the indictment, need not be considered and the Court expresses no opinion as to the same. We are of the opinion that his Honor erred in refusing defendant's motion for a directed verdict under the second count, and that his Honor should have directed a verdict of not guilty for the defendant under this count. This exception is therefore sustained.

It is not necessary to consider the remaining exceptions.

Let the indictment and the appellant's exceptions be reported.

Judgment reversed.

MR. CHIEF JUSTICE WATTS concurs. MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur in result.

MR. JUSTICE COTHRAN: I concur in result, except that I think the case should be remanded for a new trial.