The opinion
McFarland, J., dissenting.
I dissent. Dr. Hayden was examined as a witness in chief for the prosecution, — not in rebuttal; so that whether or not that part of his testimony objected to was of any importance could not be determined before the evidence of the defendant was introduced. At the time of the homicide, defendant received a pistol-wound inflicted by the deceased, and Dr. Hayden was first properly asked about that wound,— what part of the body it was in, its size, the points of *449 entry and exit, etc. He testified that it was on the inner side of the left forearm, a little below the elbow. Then the prosecution, with the approval of the court and against defendant’s objection, made an excursion into the doubtful domain of expert testimony. The transcript relates what occurred, as follows: —
“ Q. Will you state, if you can, from your examination of this man’s arm and your familiarity with gunshot-wounds, if you are familiar with them, in what position, in your judgment, this man’s arm was at the time that wound was received?
“ Mr.. Hinds. — We object to that, on the ground that it is incompetent.
“ The Court. — Let him answer the question.
“ Mr. Hinds. — We except.
“A. It would be one of two positions, provided he was on his feet. If he was on his back or on the ground, it might be another position. If he was on his feet, I should say some such position as that or this way, either one. It could not be this way, because the ball would have entered his body some place, and it would have to be well over this way, in order to miss the shoulder.
“ Q. It was either the way you describe or turning around with the arm down? A. With the arm down this way. I rather think this way, because the ball seemed to pass from rather that side toward the center.
“ Q. Well, now, suppose that you are there, and I am here, and I am going away, either running or walking fast, would you say that the ball could have entered?
“Mr. Hinds. — The same objection goes to all these questions.
“Mr. Foote. —Would it enter there and come out that way, entering the same position relatively?
“Mr. Hinds. — Same objection, ruling, and exception.
“Mr. Foote. — Is that the fact? A. Yes, sir; very similar; very much that position.
“Q,. What arm was it? A. The left arm.”
At the end of this testimony is appended a note as follows: —
*450 “Note. — The above witness, Dr. Hayden, in giving his testimony, illustrated the two positions testified to by him, viz.: 1/ With the forearm flexed almost to a right angle to the upper arm, and the elbow carried in front of and well toward the right side of the trunk, the trunk being inclined on its perpendicular axis to the right also; so the ball on its exit would not enter the trunk or the right upper extremity,—that is, the wounded man should stand with his side toward the discharged weapon. 2. Or the arm may have been only partially flexed in upper arm, and hanging at the side, the wounded party having his back toward the party firing the shot.”
I do not deem it necessary to determine definitely whether or not this ruling of the court was, in the abstract, erroneous, because it is apparent that the appellant was not injured or prejudiced by it. As before stated, the defendant was himself wounded at the time of the homicide. The deceased fired at defendant either before or after the shot by which defendant killed the deceased. The theory of defendant, and his subsequent testimony when on the witness-s'tand, was, that the deceased fired first, and that defendant then killed him in self-defense. Now, if when defendant testified it had appeared that his testimony was in conflict with the former testimony of Dr. Hayden,—that is, if the deceased could not have fired first and hit defendant in a position in which Dr. Hayden thought he must have been,—then appellant might have been prejudiced by the testimony of Dr. Hayden, which is claimed to have been erroneously admitted. But there was no such conflict. Appellant’s theory and testimony were entirely consistent with the said testimony of Dr. Hayden. If appellant had contended or testified that he was facing deceased when the latter fired, some importance might have attached to Hayden’s testimony. But there was no such testimony. The appellant, when on the witness-stand, first described the difficulty between the deceased and himself over a game of cards, and some blows between *451 them, and after speaking of a man, naming Brown, who was present, said as follows: “As I came out I expected to find him in front of me, but I didn’t. I turned around as I came out, and kind of looked to see where he was. He was at my left.” Further on he says: “I shoved Brown back that way, and as I looked around again, Williams had his gun down on me, throwed his gun down on me and shot. Just before he shot, — as he was about to shoot,—/ turned and jumped sideways, and started to get my gun out, and he shot.” And again he says: “ I felt the shot strike my arm, felt my arm kind of drop, and I was getting my gun out at the same time. I got my gun out just as quick as I could, and turned and shot at him.” Now, there is nothing in these statements — and there was no different testimony—that is not entirely consistent with the testimony of Dr. Hayden. There was nothing in Hayden’s testimony which could have prevented the jury from believing the story of the appellant, or which could have influenced them in any manner, when weighing appellant’s testimony. I am satisfied, therefore, that the testimony objected to could have had no influence upon the conclusion of the jury.