I dissent from order adhering to our former judgment of affirmance, because it appears to me:
(a) that the evidence is not sufficient to show that certain blood which was examined by the physician who testified in the cause in regard to same was taken from the defendant.
(b) I entertain the view that the evidence as to the analysis of the blood was not legally admissible in evidence even if it was the blood of the defendant, because it was taken under such circumstances as to preclude its admissibility in that no warning was given defendant that his blood was being taken for the purpose of making an analysis which would be used against him in a criminal prosecution. See Bethel, et al., v. State, 10 S.W.2d 370; State v. Horton, *Page 550 153 S.W. 1051; State v. Matsinger, 180 S.W. 856; State v. Newcomb, 119 S.W. 405; People v. Corder, 244 Mich. 274; People v. Dennis, 226 N.Y.S. 689; Wragg v. Griffin, 170 S.W. 400; People v. Akens, 25 Cal. Ap. 373.
There appear to be some authorities contra, but I think evidence procured by the means adopted in this case should not be admitted, especially when there is room for serious doubt as to the origin of the evidence. In this case the admitting of the evidence may constitute harmless error and, therefore, not be ground for reversal. However, I think it was error and should be so held.