¶1The following opinion was filed April 9, 1923:
¶2(dissenting). I do not think there is any competent evidence in this case to identify the defendant Hunter as the one who performed the operation which resulted in the miscarriage. The female upon whom the operation was performed was the only witness who testified upon this subject. Upon the preliminary examination she testified, positively, that she did not look at the man who performed the operation; that the room was illy lighted; that she laid on the bed with her eyes closed and did not look at him. The defendant Hunter was pointed out upon this examination, and the witness was asked the direct question if Hunter was the man who performed the operation. She replied: “I don’t know; I thought he was a fatter, a bigger man than that.” And again she testified: “There was nothing about his nose, or eyes, or face I remember, because I did not see his face at any time while I was in the room.” “Q. Would you know that man if you saw him again? A. I didn’t look at him. There was only lamps there.” Upon the trial she testified in her direct examination that the defendant Hunter was the man who performed the operation, but upon her cross-examination it appears that she so testified for the sole reason that Joe Flemming told her that the man was Dr. Hunter; and her cross-examination upon the trial makes it as clear as did her cross-examination on the preliminary hearing that she was unable to identify the defendant from her own knowledge or observation, and that the only reason for her assuming to say that the defendant Hunter was the man was because she relied upon the statement of Joe *172Flemming that he was the man. This, in my opinion, renders her. testimony pure hearsay and it should have been excluded by the court. I therefore dissent.
¶3I am. authorized to state that Mr. Justice Eschweiler concurs in this opinion.
¶4A motion for a rehearing was denied, without costs, on June 18, 1923.