¶1delivered the opinion of the court.
¶2The conviction rests upon the testimony of Polly Howard as to the alleged dying declaration of the deceased. Dr. Alexander’s testimony, set out as newly discovered evidence in the motion for a new trial, completely and positively contradicts Polly Howard’s testimony on every material point. The showing required by the law in regard to newly discovered evidence, so far as the affidavits of the counsel and the prisoner were concerned, was fully complied with. In this condition of the record, a new trial should have been granted.
¶3Reversed and remanded.