PER CURIAM.
The court is of the opinion that rule 38 (198 Ala. xiii, 83 South. vi) obtains in criminal as in civil cases; but the court notes that the rule provides in effect that it need not be applied in any case in which the ends of justice may appear to require further consideration.
All the Justices concur, except GARDNER, J., dissenting.
Let this opinion be certified to the Court of Appeals.