Kerr

This is an appeal from a judgment and order denying defendant’s motion for a new trial.

Defendant was charged with the crime of assault with intent to commit murder. The assault is' charged to have been committed with a deadly weapon, and upon his trial the jury found the defendant guilty of assault with a deadly weapon.

The evidence showed that defendant became engaged in a quarrel with one Sobereska, and shot him twice with a pistol. One shot passed through the breast bone, the chest cavity a little above the heart, and lodged in the muscles of the back about three inches from the surface. The other passed completely through the thigh, cutting both a vein and an artery.

The physician who attended the wounded man fully described both wounds, and at the conclusion of his examination concerning the chest wound was permitted by the court, over the objection of the defendant, to answer a question calling for his opinion as to the seriousness of such wound. It is not claimed that the physician was not qualified to speak as an expert, but that the question of the seriousness of the wound had nothing to do with the guilt or innocence of the defendant. In view of the facts testified…