*1 1969] 46? v. Shaw. PEOPLE SHAW.
Opinion of the Court. 1. Criminal Law —Defendant’s Attire —Discretion of Court.
Ordinarily a no court has discretion as to the attire worn criminal in defendant, defendant while the courtroom and presumption innocence, with consonant is entitled to clothing clothing wear civilian rather than at his trial. Objection. 2. Same —Defendant’s Attire —Time of Objection by appearing defense counsel to in defendant’s court- wearing jail room county timely uniform was not made where object clothing counsel failed to sueh earlier at an session of court at attempt which the no selected and made to adduce requested evidence that had defendant wear his own clothes. Breaking Entering Nighttime 3. Same — in the —Evidence— Pair Trial —Jail Uniform. Defendant, charged breaking entering night- in time, held, deprived trial, not to been fair where of a object jail his counsel failed to uniform defendant was wearing in place until had after taken its court on morning began the trial and defendant had been before day clothing being before the same while impaneled, identifying presented him as and evidence was participant possession the crime and as to his stolen goods shortly 750.110, 769.26). (CL 1948, after crime §§ [4] [2, 3,10] 21 Am Jur cs: te- [1, T9 5, 21 Am Jur Law 21 Am 5 Am Jur 5 Am Jur 21 Am §§221, Jur Jur References 2d, Appeal 2d, Appeal 2d, 2d, Criminal Law Criminal 2d, 2d, 239. Criminal Law Criminal for Points and Error Law Error Law §§ §§ 221, 222, § § § 867; 239; 867. 235. Headnotes 21 Am 53 Am Jur Jur, Trial 235. 2d, Criminal § 134. 381 Mich
Dissenting Opinion. T. M. Trial—Impartial Jury. 4. Criminal Law — *2 guarantee The Federal and State Constitutions to a criminal right by substantive impartial to trial an defendant (US Const, 6, 14; 1908, Ams Mich 2, §19). Const art 5. Same —Defendant’s Attire —Due Process. Forcing prison clothing a to stand trial in constitutes defendant deprivation process guaranteed a by the due the Federal of. and State Constitutions and such violation a constitutional of right (US Const, reversible error as a matter law Ams of S, 14; 1908, 2). Mich Const art Trial—Impartial Jury Judge. 6. Same — —Trial duty preserve protect The to and the criminal sub- defendant’s right impartial stantive to a and trial rests fair duty judge proceedings trial whose is to control all during expeditious with trial a view to the and effective regarding ascertainment the truth the matters involved of (CL 1948, §768.29). Judge Duty 7. Same —Trial —Breach of —Defendant’s Attire. judge charged breaking Trial in case and of defendant entering nighttime in the breached his common-law and stat- utory duty right protect to the accused to trial of impartial jury where, support an counsel in after defense of motion mistrial had asserted that had been for defendant change right prison ap- prior denied out of uniform pearance court, judge attempt in made no to ascertain claim, constituting the truth such to act an of failure (CL 1948, §750.110). abuse discretion Duty Judge —Pair 8. Same —Trial —Breach Trial. Supreme appeal Court on must correct error that occurs in judicial duty there is a criminal trial when such a breach of infringe upon right as to defendant’s fair before jury. impartial an Trial—Impartial Jury Objection. 9. Same — — criminal to trial a defendant merely right, procedural and not substantive defend- right by timely ant not such counsel to lose failure of right (US Const, object 6, 14; Ams Mich or assert defendant’s 1908, 2, §19). art Const v. Shaw. Attire—Objection. 10. Same—Defendant’s Objection appearance counsel court of defense defendant’s timely objection prison made where such toolc uniform a motion mistrial at the session court the form of morning appearance before after defendant’s uniform. Appeal Appeals, from Division Fitzgerald H. Gillis, JJ., P. Holbrook, J., (Donn D.), affirming Genesee, Parker J. Submitted (Calendar No. Docket No. November February 51,844r-l/2.) Decided App 187, affirmed. breaking M. convicted of Herschel Shaw nighttime. entering Affirmed. in the Kelley, Attorney Robert General, A. Frank J. *3 Derengo General, Leonard, Robert F. ski, Solicitor Attorney, Prosecuting Kuebler, and Donald A. people. Prosecuting Attorney, for the Assistant Philpott, (Douglas M. Brownell, Gault & Andrews appeal. counsel), for defendant on Wright Clayton LeRoy and Smith, Adams, jointly charged M. defendant Herschel Shaw nighttime. entering breaking in the * May alleged occurred to have offense afforded court- defendant was 12, 1963, On June appointed 15,1963,codefendant On October counsel. charge. Wright plea guilty entered against p.m. the case 15, 1963, at 4:30 On Otcober begun. LeRoy Defend- Smith was defendant ant’s attorney appeared court-appointed his be- on * (Stat 750.110, by PA No amended CL sinee § Supp Ann 1968 Cum 28.305).'—Reporter. op Opinion the Court. sworn. Court then drawn A
half. day. following recessed until reconvening upon 16, 1963, October On attorney defendant, for the Bivins, B. court, Ollie following place: took the court. addressed some- sir, that is motion, is Bivins: This “Mr. impaneled thing since we have occurred that has bring jury it to the to make a court like that I would record— record, client’s a matter of as court’s attention prejudiced my something I feel that rights fair trial. to a right, take out. All “The Court: “(Thereupon from the court retired room.) right, your Bivins, Mr. make All “The Court: motion. at I this time would Honor, Your “Mr. Bivins: following for a mistrial for the make a motion like to I that the minds reason; that believe
unduly prejudice Mr. Mr. Smith and Shaw towards they fact have been into due to court jail county men uniforms; that these any they other can here like clothes that come have human being, not comein here dressed like criminals. presumption of innocence tar- that this I think jury can sit there and somewhat when the nished striped I that, and think uniforms, these men in see they may granted not be the fact based impartial hearing, should that this Court fair and a mistrial. declare you let me ask this. You are Well, “The Court: why bring you lawyer; him here ordi- didn’t his nary him—(cid:127) clothes? You could have had your (interposing): clothes, He has “Mr. Bivins county jail go I cannot over to the but Honor, *4 put people him the clothes on. He make those let put requested on. his clothes the I know that. “The “Mr. don’t Court: not know Bivins: I realize the court does they sit in full nevertheless, here view. that, but, v. Shaw. op Opinion the Court. prejudice their saying would that this I am And beings only human These are rights a fair trial. looking like into court sitting a criminal— man comes A there. say, you (interposing): do Mr. What “The Court ? Prosecutor your we Jakeway: when Honor, Well, “Mr. they yesterday like were dressed case the started objection and time, made at that and no
this when jury today the in here men were the at that yet, made no motion was in here wasn’t time, okay me it would be think I would question, whether the the would ask the court if way prejudiced they the defendants would be they would I think But don’t in court. are dressed prej- they be prejudiced feel wouldn’t I fact, be udiced —in wearing. are the men what why it reason wasn’t to the Bivins: As “Mr. morning brought before the court this attention of had is because sat down yesterday. opportunity we Now, them to see Maybe pushed an over- it was for time. somewhat sight of part, my I chances are didn’t think but the on prosecutor’s far as what—in But as it then. opinion opinion for the cannot substitute —he jurors any opinion I I believe more than can. happen. no I have assurance this would suggest sugges- that —A Now, I would would. this ques- disregard them a this or ask tion that coming they prejudiced by these men would be tion, into invariably, the answer uniform, in this court get inside their mind. no. can’t be We would opinion, my presumption nished is tar- innocence, in They they are minute walk here. person average person prisoners. if thinks crime, he arrest, has committed he is under something, here. guilty he wouldn’t be otherwise deny your going Mr. motion, I am “The Court: man for this been counsel for Bivins. You have you quite day 26th known since some time going August I tried, it was be when *5 381 Mich 472 op Opinion the Court. appear arranged you to have them could think in whatever you thought proper.” clothing presented. people’s No witnesses case was The produced The defendants. p.m. charged, returned at o’clock and 2:20 retired guilty. p.m. of a verdict with at 2:45 o’clock Appeals Upon appeal, that the the Court of held way objection was clothed defendant Shaw complained timely the error made and that was not deprived gross so as to have defendant of of not a miscar- a so that his conviction was fair trial justice. People (1967), riage v. Shaw 7 App 187. referring stated, 192): (p
court to the criminal a éourt has discretion as “That Eaddy from attire is manifest both the defendant’s People William Thomas case of v. L. Case and our App (1965), 1 Mich 118.” (174 (1946), Eaddy In v. Colo 492): 717), (pp 491, P2d stated it is prisoner a as the mind of would be “We believe much much and his mental faculties as disturbed carrying person and on his confused such brand of embarrassed required, here incarceration, as as physical prejudice against shackles, and a a prisoner might eqnally thereby well be created any jurors. of the It difficult to find minds as to the humiliation distinction, involved, between requiring Jail’ prisoner ‘County to wear the words clothing requiring branded him placard his neck; wear them on attached about mockery, indignity either and a humiliation not consonant innocence freedom. The requires presumption garb of in- innocence regardless the ultimate or nocence, outcome, awaiting presentation, every defend- evidence Pboplm Shaw, Opinion of the Court. brought entitled to be ant is before the court with appearance, dignity, self-respect aof free except necessary safety man, and innocent and decorum the court as require.” otherwise opinion (p 490)-: states wearing “At the trial he was into court *6 striped ‘County coveralls with the words Jail’ writ- large Objection ten in this letters across the back. to garb request in behalf of defendant and that proper the court direct him the officerto return (cid:127) properly the court room attired were overruled.” granted The defendant was a new trial. (1938),
In the case of Shultz v. State 131 Fla 757 (179 764), opinion expressed So the is that to be clothed as a convict when one not been has convicted highly improper might grounds and that it well be a for upon reversal. In that case, reversal was based grounds.
other (CA 1967), In the case of Brooks v. Texas 5, brought 619, F2d the defendant was to trial hand jail (p cuffed and in his uniform. The Court said : 624) inherently try “It is unfair to a defendant for garbed jail especially crime while in uniform, clothing when his civilian is at hand. No insinua- implications suggesting guilt indications or tions, displayed jury, should be before the other than permissible argument.” admissible evidence and Brooks, In the Court held defendant was primarily denied effective assistance counsel prepare properly because of failure counsel’s trial and to afford the defendant the defense insanity only which was the available defense. The judgment of the district court was reversed with grant corpus directions to the writ of habeas unless the State of Texas elected within a reasonable time again try -to defendant. 381 Mich Opinion op the Court. proposition a supporting court
As criminal defendant’s as to discretion exercise People William v. cited Court attire, App (1965), In that case 1 Mich Thomas L. the brought uni- into court defendant was precaution- was done as in chains. This form and ary escape by prevent de- another measure prison. escaped In from who had once fendant (1965), App Henley also judge Appeals, the trial noted forcefully obliged clothed and the defendant to have room chair court shackled into the way. any other could not be controlled because he cases the action taken those do not think We the trial court any application to the facts has this case. ordinary has no dis- circumstances, court
Under attire. The rule to a criminal defendant’s cretion as Law, in 21 Am Jur Criminal 2d, of law stated pp 275, 276, as follows: *7 during pending defendant, trial, the and his “Since presumed he innocent, is still entitled to be is appearance, dignity, before court with the the except self-respect as man, a free and innocent óf necessary safety court and decorum of the the require. He therefore entitled to wear otherwise clothing prison at his civilian rather than clothes bring presence improper him into the trial. It is try from him, or the of the which is to venire drawn, will be clothed as which his convict.”
(cid:127) (cid:127) present the de- the as to how In the case issue attorney garbed f was éndant was never raised and the had until after the was chosen opportunity to see defendant in twice had garb. attorney for a moved mis- While defendant’s proof attempt to the he made no adduce trial, v. Shaw. op Opinion the Coubt. right requested his own to wear the had defendant clothes. pointed no that he had out court knowledge assertion to counsel’s truth of of the response Finally, what- no counsel made that effect. “You have been statement: the court’s soever you quite time and man for some counsel this August day when 26th have known since you could have going I think and appear tried, was be clothing arranged in whatever them you thought proper.” in civilian to be dressed had the
Defendant protest timely garb make a failure to there but was right. is no claim in There such denial of was denied effective the defendant this case that of counsel. assistance people presented showed de-
Evidence seat of car with was in the driver’s fendant running two while the codefendants motor breaking city Shop in the of Flint.
into Brice’s TY
companions were followed. Sev-
Defendant and his
car
was
car. The
license
witnesses saw the
eral
the defendants
testified that
Mrs. Randall
noted.
goods.
apartment
stolen
She
entered her
police.
reported
The defendants
the matter
goods
apprehended.
were identified
stolen
were
by
Wright
Clayton
store owner. Codefendant
participant
the crime.
defendant as
identified
the result of
defendant
The conviction
convincing
conclude
We
evidence.
direct
deprived
a fair trial.
not
the defendant
affirmed.
The Court
J.,C.
E.T.
Dethmers,
Kelly,
Brennan,
Adams, JJ.,
concurred with
Black,
*8
LeRoy
(dissenting).
Smith,
J.
T. M.
Kavanagh,
Wright
Shavr
Clayton
and defendant Herschel.M.
occurred Shaw was furnished October of On June 1963, defendant
court-appointed counsel. On Wright plea 15,1963, codefendant entered guilty charge. to the
Defendant Shaw and codefendant Smith, dressed striped jail County attire with the name “Genesee county Jail” were taken back, across from the jail approximately p.m. to the courthouse at 4:30 on October 15,1963, for trial. Defendant was forced appear protest against in court, over filthy, ragged wishes, clad in coveralls in full view jury panel.2 jury A was drawn and sworn. following day. court then recessed until the objection appearance Defense counsel made no jail of defendant in attire. following morning again the defendants were jail into court in the same attire. At the opening requested of court defendant Shaw’s counsel
that the be excused and moved that a mistrial following colloquy place: be declared. The took (Attorney “Mr. Shaw): Bivins for defendant something is a This motion, sir, that is that has impaneled occurred since we have that I bring would like to make a court it to the record— something court’s attention aas matter of record, prejudiced I my rights feel client’s ato fair trial. right, “The Court: All take the out. “(Thereupon retired from the court
room.) to attend and to attend Ann 1968 appeal denied defendant’s See CL defendant’s Cum court concise statement § Supreme impanel counterstatement 750.110, Snpp Ms delayed 28.305). since amended jury” application stating of facts uniform.” and “once facts by for filed again This defendant PA application new allegation * * * trial. No prosecutor. See, also, “required was not leave to required (Stat *9 v. Shaw. Kavanagh, Dissenting Opinion T. J. M. right, your All Mr. make Bivins, “The Court: motion. this, at I Honor, Yonr time would “Mr. Bivins: following- for a mistrial for the
like to make motion jury that I that the minds of the reason; unduly believe prejudice Mr. Smith Mr. towards and Shaw. they that have been into due to the fact court in jail prison county that these men uniforms; any they can in here like- have clothes that come being, other human criminals. not come here dressed like- presumption in I think that this jury can- when the nocence tarnished somewhat striped uniforms, there and these men in sit see they- may I the fact that not that, think based hearing, granted that be a fair and this (cid:127) :. a mistrial. court should declare you let this.' You are Well, “The me ask Court: why lawyer; you bring him here in ordi- didn’t his nary him—(cid:127) You have had clothes? could (interposing): your clothes, He “Mr. Bivins has jail county go I cannot over to the Honor, but put people him his clothes on. He: make those let requested put clothes on. I don’t know that. “The Court: I the court not know Bivins: realize does “Mr. they sit full nevertheless, here that, but, .in view. prejudice saying their And I am that this would beings- only-human rights a fair trial. These are looking sitting a criminal— A man into court like there. comes you (interposing): say, “The do What Prosecutor? Mr. your prosecutor]: Jakeway [the “Mr. Well, they yesterday
Honor, when started the case we objection like and no was made were dressed this n brought when the were time, at men today yet, in here no motion here was wasn’t made at I think would time, and would it. okay with ask the be me if the- court would prejudiced question, they would be whether Mich Dissenting Opinion ToyT. M.
way the I defendants are dressed court. But they prejudiced fact, don’t think I would be feel —in they prejudiced by wouldn’t be what the men are wearing. why Bivins: “Mr. As the reason it wasn’t
brought before the morning to the attention of the court this sat down is because the had an opportunity yesterday. them we Now, see pushed Maybe for time. somewhat an over- sight my part, on I but the chances are didn’t think *10 prosecutor’s it then. But of opinion as far as what—-In the opinion I cannot his substitute the —He opinion jurors any I more than can. believe happen. that this would I have no assurance that suggest sugges- this would. I would Now, that —A jury disregard ques- tion that the or this them a ask they prejudiced by coming tion, would be these men invariably, into court in uniform, this the answer get would be no. We can’t inside their mind. The presumption my opinion, of in innocence, tar- they They nished the prisoners. walk in minute here. are average person person The thinks if a arrest, is under crime, he has committed a ishe guilty something, of he otherwise wouldn’t be here. going deny your “The I am Court: to Mr. motion, Bivins. You have been counsel for this man for quite you some time known have since 26th day August going of tried, when was to I be you arranged appear think could have them have clothing you thought proper.” in whatever jury guilty. found defendant Upon appeal, of held objection timely to defendant Shaw’s attire was not complained made and that the error of not so gross deprived as to of defendant a fair trial resulting miscarriage justice. People in a v. Shaw (1967), App 7 Mich question
The sole for review is whether defendant by right denied a constitutional to fair trial “impartial required appear jury” an when he was People Shaw. Dissenting T. M. Opinion by jury trial in at voir dire and dressed tbe tbe before jail uniform. presented not involve for review does Tbe issue procedural See v. Shaw error. mere (1967), App art 192. Const guarantees the criminal defendant sub 19,3 jury,” as do stantive “trial of the Federal Con the 6th and 14th Amendments stitution. Limitations Constitutional Justice Cooley, enumerating ed), p
(8th a number 676, in right to a said: trial, elements essential “Many a common-law trial of the incidents of right. elements of the are essential prisoner and between must be indifferent Commonwealth.” America, States of
Constitution the United (Eev 1963), Analysis cussing Interpretation dis- Ed 1001): (p by impartial jury, states trial required by jury by the Constitution “The trial which includes all the essential elements recognized country England when this adopted.” the Constitution was *11 language quote following goes from It on to the (8 (1888), S Ct 540, v. Wilson 127 US 557 Callan 1301, 1307, 223): L32 Ed “ guarantee impartial jury ac- an ‘The of * * * prosecution secures in a cused criminal right enjoy from trial the to him the to that mode of put on he is court, and in moment,
first whatever ” 1002). charged.’ (p trial for the offense right impartial Implicit is the in this presumption presumption of and the innocence; of garb requires 21 Am of innocence. the innocence [3] For current provision, see Const art 1, §
48Ó 381 Mich Dissenting Opinion by T. M. O'. 275, 276; Eaddy v. 239, pp Law, § 2d, Criminal Jur 717). 488 P2d (174 Nothing 115 Colo People (1946), of in presumption the destroy -surely could more necessity, impartiality the and, 'of nocence to be tried in force the defendant than to jury, against the defendant Forcing clothes. of deprivation trial so dressed will to stand Federal our by State guaranteed due process Dees (ED La 1968), Dennis v. See Constitutions. 4 Diamond, rel. States, ex v. United 354; Supp 278 F 971; 263 F (ED Supp Pa 1967), Dept. Social Service 619. Such 381 F2d Brooks v. Texas (CA 5, 1967), is, opinion, right my a constitutional violation law. as a matter error reversible prejudicial (dissent by 2d v. State 9 Atkins 1968), So (Fla C. Carroll, J.).
n the criminal protect duty preserve impartial to a fair defendant’s substantive judge. the trial upon rests Montague People As stated this Court 71 Mich 452: (1888), immemorial held from time “It has been affirma- provide itself is bound see and trial court prisoner is done that no injustice tively course of improper prosecutor.” this v. Evans 367, 383, In Mich (1888), Court said: been
“This has occasions numerous upon the conduct upon called its express opinion criminal officers prosecuting prosecution 'rule down the and has often laid cases, as court, to well as duty as was-their duty, trial.” that the accused had a .see fair .(Emphasis added.) US Const,. Am 14- Const art 16.—Reporter. *12 .1969] People v. Shaw. Opinion T. M. Dissenting Sharp (1910), In v. writing said: Court, for the
Justice Stone, wholly unimportant whether the deem “We disqualified impaneled juror and sworn, when was corrupted disqualified or whether he became during duty progress trial. In either case the disqualification of the to act when the court such of (Emphasis added.) imperative.” discovered is is duty a trial This common-law incumbent legislatively expressed judge in PA No part: § ch 8, 29,5which reads duty judge “It shall be control all proceedings during trial, and to limit the intro- argument duction of evidence and the relevant and counsel to material matters, ivith a view the expeditious and ascertainment the truth effective regarding added.) (Emphasis the matters involved.” judge In trial the instant case the breached duty. statutory counsel, common-law and When support mistrial, of his motion for claimed requested permission their defendants had to wear merely judge then available civilian the trial clothes, responded, attempt “I know made no don’t that.” He of the from the determine the truth assertion the officer defendants who were before him or from charge prisoners. Surely, under who had judge statutory circumstances, had obligation the matter. to ascertain the truth of judicial duty goes so far that breach
When to a fair trial before evidently infringed, we are bound to correct People Montague, supra. appeal. error on argued It below and the Court attire concluded that the matter of the defendant’s many procedural right, at trial like that, Key 5 CL 1948, (Stat 28.1052). 768.29 Aim 1954 § *13 381 Mici-i 467. 482 Dissenting Opinion, by T. M. J. Kavanagh, procedural rights, may bypassed other lost be properly where there is a failure to People assert it. (1967), App v. Shaw 7 Mich reaching Appeals In this conclusion Court of heavily upon People relied v. William L. Thomas (1965), (1965), App People Henley 1 Mich 118, and v. App appli-
2 Mich decision Neither cable to facts in this case. Appeals
Further, Court was in error in People construing (1965), App v. 1 Schram Mich holding impar- as a the matter of fair and procedural right. tial trial was a All that was by (p 284): said the Court in Schram was that just “A motion for a mistrial, as a motion puts question impar- trial, new in the fairness and tiality appeal It is an trial. to the sound discretion the court.”
An examination of the cases cited Schram dis- Alpena Judge closes Churchill v. Circuit (1885), Supreme granted Mich 56 536, the compelling judge writ of the trial mandamus reverse his denial for a motion mistrial. writing There Court, Justice for the said Campbell, (p 540): only “The safe rule must be to treat the as disqualified rights litigants to settle the as soon they guarded against as cease to be unlawful con- right strictly with the tact world. outside to a preserved protection against undue influence cannot depend be made to on discretion.” (1902), In In (57 Ascher re LEA 806), this Court said: right “It is a of which the accused cannot be
deprived jury.” to have his case tried People v. Shaw. Dissenting Opinion t>y T. M. Cooper (1910), In v. Carr 161Mich 405, this Court concluded that defendant did not have the benefit of such a she was as entitled to have under law, that defendant was entitled—as matter have the same set aside, and that the —to judge, trial motion for new on facts found him denying
trial, erred the motion. supra, In Schram, the Court of (pp 286): said jurors
“In the instant case the court examined the prosecutor presence and the in the of the defense *14 attorneys. jurors The their stated conversation had question long they to do with the of how would be trying prejudice jurors the case and both denied that it would prosecu- them for either the defense or the tion. The court was satisfied from their answers they give that could the defendants a fair im- * * * partial trial. nothing
“There is in the record to show an abuse denying of discretion in for a motion mistrial.” procedure In the instant case no such was followed judge. attempt the trial He made no to find out allegations the fact as to whether or not the motion for mistrial were true and made no in the
finding deprived as to whether defendant fair, had been of a implicit trial. We as conclude, supra, judge Schram, that where the trial abuses his discretion we must reverse.
The Court of held that the reason the defendant should be refused a new trial that timely right “defense counsel failed to assert appear defendant to before the in his own clothing.”
Viewing right impartial jury to an as a sub- right, stripped stantive the defendant cannot be right by timely or lose such counsel’s failure to object right. Henry or assert defendant’s v. See Mississippi (1964), (85 13 443 S HS Ct 381 Mich
Dissenting Opinion by T. M. People Ignofo (1946), 408); L v. 315 Mich Ed 2d People Kelsey (1942), 303 Mich 626; 715; v. (1924), People Murray 552; v. v. Nelson (1888), No 10; 72 Mich 529.1. GCR objection, to the of the
See, also, as
timeliness
Harrington
Judge (1908),
Probate
Reversible error was the trial committed disregarding statutory who, common-law obligations, not determine the truth the facts did *15 upon which counsel’s motion for mistrial was based. discretion, His failure to act was an priving de- abuse impartial jury defendant of a fair and guaranteed by of the Constitution United States Michigan. of the the Constitution State of judgment Appeals affirming of the Court of judgment conviction defendant should granted. and a be reversed new trial part J., T. took no Gr. the decision of this case.