
    STATE, Respondent, v. MILLS, Appellant.
    (189 N. W. 941.)
    (File Nos. 4874-4887.
    Opinion filed September 29, 1922.)
    Kape — Whether Defendant Had Gonorrhea When Examined — New Trial Granted.
    Upon rehearing, held, that trial court erred in refusing to allow witness Dr. Wohleven to testify whether in his' opinion defendant had gonorrhea at time he was examined by witness for purpose of ascertaining that fact; for which error new trial is granted.
    Gates, P. J., dissenting.
    On rehearing.
    New trial granted.
    For former opinion, see 45 S. D. 439, 187 N. W. 49.
    
      Crofoot & Ryan, and Smith & Shandorf, for Appellant.
    
      Byron S. Payne, Attorney General, and B. D. Roberts; for Respondent.
   POLLEY, J.

This case is here on rehearing. The opinion of the court was filed on the 3d day of May, 1922, and is reported in 188 N. W. at page 49.

Upon consideration of the petition for rehearing we became convinced that the trial court committed at least one error that was prejudicial to appellant. This was the refusal to permit the witness Dr. Wohlében to testify as to whether in his opinion the appellant had the gonorrhea at the time he was examined by the witness for the purpose of ascertaining that fact. This matter was presented by assignments Nos. 6 and 7. This matter was material to the appellant, and the witness should have ¡been allowed to testify. Dor this error a new trial will be granted. On a retrial the appellant will be allowed to introduce the matter set up as newly discovered evidence, and further consideration of that question is unnecessary at this time.

The judgment and order appealed from are reversed.

GATES, P. J„ dissents.  