State, 183 Ark. 870, 39 S. W. 2d 295. Nor could this deadly prejudice be removed by the instruction, confining Mrs. Austin's testimony to the issue of intent. If her evidence had no permissible relevancy to that issue, and we think it had none, then the jury could obey the instruction only by disregarding the evidence altogether—a result that is more surely accomplished by excluding the testimony in the first place. It is not without regret that we send this cause back for a new trial. But this issue goes to the very heart of fairness and justice in criminal trials; we cannot conscientiously sustain a verdict that may have been influenced by such prejudicial testimony.
Reversed.
GRIFFIN SMITH, C.J., and MILLWEE, J., dissent.
MCFADDIN, J., dissents in part.
OPINION ON REHEARING
GEORGE ROSE SMITH, J., on rehearing. In connection with a petition for rehearing the State ask leave to amend the record by showing that the trial court in fact instructed the jury with respect to the alternative penalties for the crime of rape, this instruction having been omitted from the record by error. If this were the only reason for remanding the case for a new, trial a ruling upon this motion would be necessary, as in Morton v. State, 208 Ark. 492, 187 S. W. 2d 335; but since a new trial is necessary in any event we find it unnecessary to pass upon the State's motion. See Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248.
Rehearing denied.
ED. F. MCFADDIN, Justice (dissenting).
I.
Failure to Instruct on Life Imprisonment
I agree that the record in this case fails to show that the Jury was instructed regarding life imprisonment; and this case, on that point, is ruled by the case of Webb v.
