State v. Foster

CONCURRING OPINION OF

LEWIS, J.

I concur in the order of reversal, but on a different ground. In my view there was plain error in the giving of Prosecution’s Instruction No. 6 over objection and exception. Despite procedural defects we should notice this error under the circumstances present here.

On the afternoon of May 7, 1959, the court considered nineteen requested instructions submitted by the prosecution, and sixteen submitted by the defense. At that time Prosecution’s Requests Nos. 6 and 8 were granted over objection. Appended to this opinion is a note setting out the portions of the…