dissenting. I base my dissent from the ruling of the majority in this case on the two grounds, that the evidence does not sustain the verdict which was rendered and that the court, erred in admitting the evidence of Dr. Quinn, who testified: “I think Mr. Dennard [the deceased] must have been sitting and his assailant must have made the attack from behind.” There has been no attempt to reproduce the evidence.It is voluminous, and I shall not give any part of it in detail. It is sufficient to say, that there was no eye-witness to the homicide — that no one saw the accused enter the room where Dennard was slain — he says he was not there. Taylor, who had been previously convicted of the homicide, admitted that he alone killed, Dennard, and swore on the trial that Perry was not in the room at the time he struck the blow that caused the death of Dennard. Circumstances strongly corroborated this evidence. Immediately after Dennard had been stricken, Taylor entered the room where the other prisoners were confined, having in his possession a gun, pistol, and watch belonging to Dennard, all of which were in the room where the blow was stricken. It is true that Taylor was followed into that room by Perrv, *242who had an axe in his hand. It was not shown that the axe was in the room where the homicide was committed, but most likely it was in the yard where Taylor says Perry was, at the time Taylor says he struck Dennard. Evidence of a conspiracy between the two to kill Dennard, in view of the conviction of the plaintiff in error, I must characterize as being to me painfully absent. In my opinion, it must rest alone on the fact that he had an axe in his hand after Dennard had been stricken and when he entered the room where the other prisoners were confined. Eor aught that appears, we are not authorized to conclude that he had it at the time of the homicide. As a matter of fact there was but one blow inflicted on Dennard, and that, was not with an axe. He was, according to his own statement and the evidence of Taylor, out in the yard when Dennard was killed, having, as they say, asked and received permission of Dennard to go into the yard, previously to the difficulty. That he had an axe in his hand when he followed Taylor into the room where the prisoners were confined, was certainly a circumstance to create suspicion — would very strongly do so if it had not been shown to what use the axe was put. After Perry entered the room with the axe, Taylor took it from him and broke the lock on the large chain to which they were confined, thus freeing all the prisoners. Was it likely, if Taylor and Perry had conspired to kill Dennard, that they would not have acted together in overpowering him? What might have been a dangerous act to one alone, would have been reasonably safe for two. Again, is it reasonable to believe, if Taylor and Perry were together in the room when Dennard was slain, and his gun, his pistol, and his watch taken, that Perry would not have gotten one of the articles ? Yet Taylor came out with all of them. These facts add to the positive evidence of Taylor, that Perry was not in the room and had nothing to do with the homicide, considerable weight. Very much of the testimony was derived from persons confined on the chain-gang at the time. None of them, however, went to the extent of testifying to any facts which would of themselves authorize a conviction. If the evidence of Taylor that Perry had nothing to do with the homicide and was riot in the room at the time it was *243■committed is to be doubted — when all of this testimony went directly against his own interest — because he was a negro convict, why should credence be given to the testimony of other negro prisoners serving their country in a like capacity ?
I do not think that the evidence of Dr. Quinn, who testified over the objection of plaintiff’s counsel that “I think Mr. Dennard must have been sitting and his assailant must have made the attack from behind,” should have been admitted. It is said by Mr. Justice Lumpkin, in the foregoing opinion of the majority, that the physician was not only an expert, but based his opinion upon the facts which he stated. In my judgment, one sensible, observant man, who is not a physician, could have just as readily known that Dennard was sitting and that he was struck from behind, as another such, who was a physician, and yet I do not think it can be doubted that neither one of them would know much about it. This character of evidence does not come within the domain of expert evidence. Because a man happens to be a physician, he is not thereby invested with, any special -power to know accurately what was the position of the parties when a homicide was committed not within his presence. Of course, if Dr. Quinn did give the facts upon which his opinion was based, his evidence was admissible, and so.would have been the evidence of a layman. But I do not think he did. Dr. Quinn testified that he was called to see Dennard about 18 hours before his death; he was perfectly unconscious, in a profound stupor, caused from a blow inflicted upon his head, causing a fracture or rather several fractures. The doctor thought the weapon with which the blow was inflicted must have been about 3 inches in diameter, a round instrument; there was a central fracture and then a surrounding fracture, and the instrument must have had a knot on it, and the central fracture must have been produced by that knot; he thought it was a piece of wood. Adjoining that was another fracture of less degree. The fracture was about three inches wide and three and a half inches long. The fracture was on the right side of the head. It produced paralysis of the left side, the opposite side, and unconsciousness. The flow of blood was caused from a rupture of .some of the cerebral vessels. The direction of the wound was *244about on a level. “T think Mr. Dennard must have been sitting, and his assailant must have made the attack from behind-1 think the wound was nearly on a level — I mean it was straight across the head above the ear. I think the wound was about on a level with the pinnacle of the ear, but posterior some two-inches perhaps. I mean the wound was about two inches in rear of the ear, nearly on a level.” While I have not attempted to give all of the further description of the wound made by Dr. Quinn, the above is what precedes the testimony which was objected to, and to me it appears that this testimony was admitted as expert evidence, because the description given of the wound,, preceding the testimony to which objection was made, would not of itself seem to afford any reason for the opinion that the person who was stricken was sitting at the time, and that the person who-inflicted the blow was in his rear. But, aside from this, the admission of the testimony did not seem to have been based so much on the reasons given for the opinion, as that it came from an expert. The evidence was very harmful to the plaintiff •in error, if the jury believed .that there was a conspiracy between Taylor and himself to kill Dennard. As I do not think that the evidence can be brought in the class of expert testimony, I think it should not have been admitted, unless some distinct reason had been given for the opinion. For the reasons above stated, I have been unable to concur in the opinion of the majority of my brethren. I think a new trial should have been granted.