The opinion
SHENK, J., Concurring.
I concur in the reversal of the judgment but not for the reasons stated in the foregoing opinion. From the evidence received in the case I am satisfied that there was sufficient upon which to base the conclusion that the deceased did not come to her death by accident and that the corpus delicti was established. *663 However, the defendant desired fully to rebut this showing. I am convinced that the trial court unduly restricted the defendant in his offer of proof of an experiment by which he proposed to show that when a woman of the size of the deceased was placed with her head upon the washbasin and her feet in the bathtub in said bathroom, and was allowed to slip from that position, she would always slip back into the bathtub. While ordinarily the trial court may in its discretion admit or reject testimony concerning experiments, I am satisfied that the refusal to admit such testimony constituted an abuse of discretion under the circumstances presented by the evidence in this case.
I think the trial court also erred prejudicially in unduly restricting the defendant as to' the tendered expert testimony on the question whether the fatal injuries could have occurred by coming in contact with the washbasin.
Furthermore, the question of the position or positions of the body of the deceased at the time that the blood spurted therefrom and onto the walls was of utmost importance. The defendant offered expert testimony to prove, from the location and shape of the spots of blood, that said blood spurted from the wounds while the body was in a position consistent with the defendant’s claim of accidental death by a fall against the washbasin. I believe the trial court also committed prejudicial error in excluding such testimony.
There are other assignments of error, including the claim that the defendant was prevented from having a fair and impartial trial by reason of the fact that a deputy sheriff of the county served as a member of the trial jury. As to certain of said assignments, it does not appear that there is any substantial merit therein. As to the remaining assignments, including the alleged disqualification of the juror, I believe it unnecessary to discuss the same as there is no likelihood that the questions involved will arise on a retrial of the cause.
Spence, J., pro tern., and Waste, O. J., concurred.