delivered the following dissenting opinion:
I am unable to concur in the conclusion announced in the majority opinion in the foregoing action. However, as to the first point there considered, concerning the particular moment when pregnancy with child may, under the statute, be deemed to exist, I shall express no opinion. A decision upon this point is not essential to a determination of the merits of the cause, and, as observed on the same point in State v. Dunn, 53 Or. 304 (100 Pac. 258), should be reserved for future consideration, especially so in view of the fact that in the case cited, as well as in the one under consideration, each of the counsel for the respective parties to the controversies conceded that the use of the words “pregnant with child,” so far as any prosecution under Section 1748, B. & C. Comp, is concerned is synonymous with the expression “quick with child,” and that the same rules of law are applicable *538thereto. It is well to observe, however, that, according to the views expressed by the writer of the majority opinion, fceticide constitutes manslaughter without any reference to the period of gestation. Assuming this position to be a correct exposition and application of the law, it follows that defendants could only have been prosecuted for manslaughter, and are not subject to a criminal prosecution under Section 1930, B. & C. 'Comp., for that section expressly limits prosecutions under it to instances where “no punishment is expressly provided therefor by the Code.” In State v. Nease, 46. Or. 433 (80 Pac. 897) it is stated and quoted with approval in the majority opinion in the case under consideration, that this section of the statute was evidently intended to cover such offenses against the public peace, public health, common decency and public morals, and such as grossly injure the person or property of another, as are not otherwise made punishable by the Code, and, as there further indicated, only such acts as were punishable by the common law may now be punishable under Section 1930, if not otherwise punishable by the Code. For a similar application by this court of this rule to another act, see State v. Eisen, 53 Or. 297 (99 Pac. 282: 100 Pac. 257), where it is held that it was not intended by the statute there under consideration to provide either additional methods of prosecuting crimes, nor cumulative penalties, for the prosecution and punishment of which provisions have otherwise been made by the statute. If, therefore, the first position taken in the opinion is sound, the conclusion announced as to the sufficiency of the indictment under Section 1930, B. & C. Comp., must, as a logical sequence, be rejected. I think, however, that, independent of the above feature, the indictment is insufficient to sustain a conviction of any crime known to our statute. The language of the Code attempts no specific definition of the offense herein sought to be established. Only broad and *539general terms are used, leaving the acts which may come within its provisions -to be sufficiently averred; and the rule is elementary that an indictment is not sufficient, though it charges the offense in the exact language of the statute, either where the words of the statute do not embrace a definition of the offense, or the acts themselves are not unlawful. Pleadings coming within such rule are necessarily limited to instances where the statute sufficiently sets out the facts constituting the offense, so that the defendant may have notice of that of which he is charged. Nothing can be left to implication, intendment or conclusion: 10 Enc. Pl. & Pr. 487, 503; 22 Cyc. 335; State v. Packard, 4 Or. 157; State v. Perham, 4 Or. 188; Latimer v. Tillamook Co. 22 Or. 291 (29 Pac. 734).
As stated by Mr. Justice Waldo, in State v. Smith, 11 Or. 207 (8 Pac. 343), “An indictment must be so drawn as to exclude any assumption that the indictment may be proved and the defendant still be innocent.” The section under which this prosecution is brought contains no specific reference to the class of acts attempted to be charged against the accused, thereby making it impossible to charge the offense in the language of the statute. The only averments tending to bring the charge within the statute are that the defendants did wrongfully, unlawfully and contrary to the statutes, equip and maintain a certain house and place, known as a “maternity hospital,” for the purpose of producing abortions upon women pregnant with child. The words “wrongful, unlawful, and contrary to the statutes in such cases made and provided” are statements of conclusions only: State v. Stroud, 99 Iowa, 16 (68 N. W. 450). Take from the indictment these words, and it will be found that the defendants are merely charged with intentionally maintaining a “maternity hospital” where abortions were produced upon various women,- including one Mahala Roberts. Nothing appears within the charge to indicate that the *540acts complained of were committed at such hospital, other than under such circumstances as might be necessary for the preservation of the lives of such women as may be treated there; and surely we cannot, merely by intendment or implication, charge defendants with the acts essential to bring the conduct within the criminal statute. This can only be accomplished by treating the words “wrongful, unlawful and contrary to the statutes” as being sufficient for that purpose, for the statute makes abortions a crime, and the commission of which could be in conflict with Section 1930 of the Code only where not performed for the purpose of preserving the life of the person pregnant. Sufficient facts should be stated from which it could be determined whether the acts complained of were wrongful or in violation of any of the provisions of the statute; otherwise it is obvious that defendants could plead guilty to every statement in the indictment and still not be subject to punishment under the Code.
The majority opinion holds that “if we had a statute authorizing the procuring of abortions in certain cases, it might be necessary, in an indictment in such a case as this, to negative such exceptions, but we have no such statute.” This statement overlooks the fact that the common law, as well as all statutes bearing on the subject, recognize the right to commit abortions in certain eases, such as to preserve the life of the mother, etc. Indeed, Section 1748 of the Code, quoted in the opinion, contains this exception. It cannot, then, be said that abortions are either malum in se or a nuisance per se: 21 Am. & Eng. Enc. Law (2 ed.) 683; 14 Pl & Pr. 1098. Hence, under the most unfavorable view possible, it could only be such as are unnecessary and which may be committed for immoral purposes, that may come within the malum in se, or nuisance per se rule; and every rule of pleading requires that, to bring the accused within the *541charge of making a business of engaging in any unnecessary or immoral acts of any kind, the facts must be stated in the indictment or information, showing such condition, and not merely the conclusion that the acts were wrongful or unlawful. In State ex rel v. Malheur County Court, 54 Or. 255 (101 Pac. 907) this court, in an opinion by Mr. Justice McBride, in construing an averment there under consideration that “no notice was ever issued or posted as by law provided,” holds that “the words ‘as by law provided’ make the allegation a mere statement of a conclusion of' law,” further observing: “It is equivalent to saying that, in the pleader’s judgment, there was something in the manner or time of posting, or in the substance of °the notices, that rendered them invalid. There was, therefore, no question of fact to be tried by the court.” Although that was a mandamus proceeding, the reasoning there invoked applies with equal force to the case in hand. The mere assertion that the acts of defendant were “wrongful, unlawful and contrary to the statutes,” etc., amounts only to a declaration that in the opinion of the grand jury the abortions committed, and maintenance of equipments and a building therefor, was in violation of law and a menace to the public, etc., which, without stating the facts from which such conclusion is deduced, states no issuable facts upon which the accused may be tried.
The charge intended by the indictment is a criminal charge; and, while it refers to the business affairs in which the accused may be engaged, the manner in which it is intended to allege the business was conducted is criminal in character, and the defendants were convicted accordingly, and, as recently held by this court in State v. Eisen, 53 Or. 297 (100 Pac. 257), and numerous other authorities there cited from this court, “an information or indictment must negative such exceptions as are expressly or impliedly included in the stat*542ute under which the charge against the accused may be preferred.” This does not mean that the exception must be contained in the particular section of the statute under which the charge is preferred, but the statute is to be taken and considered as a whole, and was so applied and recognized in the case last cited. Applying the statute in the most favorable light possible to the state, there must be read with Section 1980, B. & C. Comp., a further statement that the conducting of a hospital for the procuring of unnecessary abortions shall be deemed to come within the provisions thereof, making the negativing of the exceptions (or statements of facts showing such operations to have been unnecessary) essential to the sufficiency of an indictment filed under such section.
Decided October 12, 1909. Statement by Mr. Justice McBride. This case was argued and submitted during the March term, 1909. Mr. Justice Bean having retired from the bench after the argument and before the decision, and the remaining four members of the court being equally divided in opinion as to what judgment ought to be rendered, the case, under the statute, stood affirmed. A re-examination before a full bench being considered desirable, a rehearing was granted. Affirmed.I feel compelled, therefore, to dissent from the conclusion reached by the majority, and think the indictment clearly insufficient to sustain the judgment of conviction of defendants, and that the judgment of the lower court should be reversed.
Mr. Justice Slater concurs in this dissent.