dissent"> Mr. Acting Associate Justice C. T. Graydon

(dissenting) :

The original opinion in this case was prepared by me but the majority of the Court disagreed with that part of the opinion which sustained Exception X. Thereafter the late and lamented Chief Justice John G. Stabler adopted all of the writer’s opinion- as the majority opinion of the Court, disagreeing, however, with the disposition of Exception X.

The opinion of the former Chief Justice has been adopted in toto by the present Chief Justice and Mr. Justice Fishburne, but only in part by Mr. Justice Baker, who agrees with me that Exception X should be sustained. However, since at least three justices must agree on a reversal when the Court is composed of more than three members, the opinion adopted by the present Chief Justice and Mr. Justice Fishburne becomes the prevailing opinion.

Briefly I will give my reasons for not agreeing with the disposition of Exception X. It is true, as set forth in the opinion of 'the Chief Justice, that the exception is general and does not exactly cover the point which should give the defendant a new trial and in my judgment, in a criminal case, every reasonable doubt should be given in his -favor both on the trial of the case and on the appeal thereof and it should be the purpose of the Court to see that he, the defendant, obtains a fair and impartial trial under all of the facts and circumstances.

While the defendant was upon the stand certain questions were directed to him which, to the lay mind, would infer that the defendant should have secured a distress warrant from a magistrate. These questions asked on cross examination would not within-themselves entitle the defendant to a new trial, but in the charge of the learned Judge the expression *146 is made, “You have a right to issue what is known as a distress warrant and have your agent appointed who has a right to go upon the premises in a peaceable way.” Although the charge of the trial Judge was eminently correct in all particulars, it is my opinion that the jury could have properly reached the conclusion that the failure to have a magistrate issue a distress warrant was fatal and thereby be under an erroneous impression of the law.

In a civil case I do not feel that what transpired would be sufficient for a reversal, but in a criminal case the same rule does not apply. Of course, had the trial Judge in his charge informed the jury that it is not necessary that a magistrate issue the distress warrant, the impression which the jury might have formed from the questions asked and the charge of the Judge, would have been corrected. The criminal law should be enforced fearlessly and fairly, but I am of opinion that where there is a question it should be resolved in favor of the defendant and in this case there is a question in my mind and I, therefore, believe that the defendant should be given the benefit of this question and allowed and permitted a new trial.

For the above-stated reasons I respectfully dissent from the prevailing opinion as to the disposition of E-xception X.

Mr. Justice Baker concurs.

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