In the foregoing case Jones, Matthias and Day, JJ., reach the conclusion that no prejudicial error has intervened and that the judgment of the court below should be affirmed.

Marshall, C. J., and Allen and Robinson, JJ., are of the opinion that the judgment should be reversed.

Kinkade, J., having been a member of the Court of Appeals that heard and decided this case, and whose record is now before this court for consideration, does not participate herein.

For the foregoing reasons, there not being four judges that have reached a common conclusion, it follows that, there not being a majority of the *565 court in favor of reversal, the judgment of the Court of Appeals stands affirmed.

Judgment affirmed.