I dissent.
While the authorities cited by Mr. Justice De Haven beyond question determine that the testimony of Dr. Hayden was incompetent, still I am unable to see how the defendant was prejudiced thereby. The theory of the prosecution at the trial was, that the defendant had his back turned toward the deceased at the time he received the wound in the arm. The theory of the defense was, that the defendant was standing with his side to the deceased, and his left arm raised to a certain angle, at the time he received the wound. The doctor, as an expert, testified that the defendant could have been in either one of those two positions at the time he received the wound; consequently, I do not perceive how the defendant was prejudiced by the admission of the testimony.