The section of the statute under which the indictment was found reads as follows: “If any person with intent to produce miscarriage of any pregnant woman 1 wilfully administers to her any drug or substance whatever, or with such intention use any instrument or other means whatever, unless such miscarriage is necessary to save her life, he shall be imprisoned,” etc. Code, section 4159. The indictment negatived the exception found in the statute, and the court instructed that che otate must show, beyond a reasonable doubt, that the miscarriage produced by the defendant was not necessary to save the life of the mother. On behalf of defendant, it is contended that there was no evidence to support this allegation of the indictment, and that the verdict is contrary to the instructions of ¿he court. The attorney general insists that it was not necessary to negative the exception contained in the statute, and. that, in any event, there was sufficient evidence to make out a prima facie' case.
The exception contained in the statute is a part of the description! of the offense and of the enacting'clause embodied in the very section which defines the crime'. Indeed, the exception is so incorporated with the prohibitive clause that one' cannot be read without the other. In such cases, it is necessary that the indictment negative the exception. State v. Leeper, 70 Iowa, 748, State v. Van Vliet, 92 Iowa, 476, State v. Beneke, 9 Iowa, 203; State v. Williams, 20 Iowa, 98. Following these rules, it is generally held that ain indictment for abortion must negative all exceptions found in the section of the statute defining the offense. State v. Meek, *64570 Mo. 355; State v. Leeper, supra; State v. Stokes, 54 Vt. 179; Beasley v. People, 89 Ill. 571; Bassett v. State, 41 Ind. 303; State v. McIntyre, 19 Minn. 93 (Gil. 65); Commonwealth v. Hart, 11 Cush. 130.
Again, the attorney general insists that, if it be necessary to negative tbe exception contained in tlie statute; it is not incumbent on the state to make proof of a. negative, for the reason that the evidence is peculiarly within the knowledge of the defendant, and he relies on the rule announced in 1st Greenleaf Evidence; section Y9, and notes. Our statute contains but the one exception, and in this respect is somewhat different from the statutes of other states. Evidence of this exception does not lie peculiarly within the knowledge of the defendant. As said in Moody v. State, 17 Ohio St., 110: “The circumstances attending the procurement of an abortion, tending to prove that it was unnecessary for the purpose of preserving the life of the mother, ordinarily can be shown quite) as easily on the part of the prosecution as it can be proved by the defendant that it was necessary for that purpose.” As a general rule; when the offense is grounded on a negative, or when that negative is an essential element of the crime, the burden is on the state to prove it. No doubt, all that is required of it in thei first instance is to make out a prima facie case; but that it must do in order to make* out its case.
All that is disclosed by the evidence on this point is that the woman on whom the operation was performed went with •her mother to the office of the defendant, who is a doctor, 2 and requested her to perform an abortion. The woman was advanced in pregnancy for from five to six months, and the operation was successfully performed. There is no evidence of illicit intercourse; no> showing as to whether she was married or unmarried, and nothing to indicate the condition of her health, except that she walked to the office of defendant two or three times. Surely, this does not prove beyond a reasonable doubt that *646tbe miscarriage was not necessary to save the life of the mother. And we are of opinion that it does not mate out even a, prima» facia case. It is a matter of common knowledge that inamyl parsons walk to hospitals and to offices to have operations performed that are necessary to save life. Ever}" presumption is in favor of defendant’s innocence, and, if the facts shown are capable of explanation on any reasonable hypothesis in favor of innocence, there can be no rightful conviction. There was not sufficient evidence to* support the material allegations of the indictment, and defendant’s motion for a new trial should have been sustained. In support of our conclusions, see the following cases: State v. Clements, 15 Or. 237 (14 Pac. Rep. 410); State v. Glass, 5 Or. 73.
Defendant complains of the action of the court in denying a continuance. As the case must be reversed, it is not necessary that we consider this question. For the error pointed out, the judgment of the district court is reversed, and the cause is remanded for a retrial.- — Pevebsed.
Grangeb, J., not sitting.