dissenting:
Careful review and consideration of all the evidence in this case, as disclosed by the record, convince me that the State has utterly failed to prove that the miscarriage experienced by the prosecutrix approximately three and one-half months after she was treated by the defendant was due to or produced by any act of the defendant. I am also satisfied that the Intermediate Court of Kanawha County, in which the defendant was indicted, tried and convicted of the statutory crime of abortion, erroneously permitted, to the prejudice of the defendant and over his objection, the introduction of testimony of a member of the Department of Public Safety that in August, 1949, he had seen an unlisted female patient of the defendant enter and leave his office and that she was followed to her home where she was found to be ill and where a statement from her was obtained; and that the trial court also committed error in permitting, over the objection of the defendant, doctors, who testified in behalf of the State, to answer a hypothetical question propounded to them which elicited their opinion that an injury caused by an instrument used by the defendant could have produced a miscarriage experienced by the prosecutrix on June thirtieth, 1949. The insufficiency of the essential proof to sustain the verdict of guilty returned by the jury, the introduction of incompetent evidence prejudicial to the defendant, and the improper hypothetical question and the answers in response to it, in my opinion require reversal of the judgment of imprisonment of the defendant in the state penitentiary which the circuit court of Kana-wha County refused to disturb and which the decision of the majority now affirms. Because of these errors, which the majority declines to recognize or correct by the reversal of the judgment and the award of a new trial, I respectfully dissent.
*15The only direct evidence of the commission by the defendant of the offense with which he is charged consists of the testimony of the prosecutrix, a practical nurse who frequently assisted the defendant in his practice, and the defendant himself.
The prosecutrix, a young unmarried woman, approximately eighteen years of age in March, 1949, testified that she had intercourse with a man on the night of January 1, 1949; that following that occurrence, she missed her February menstrual period; that about the middle of March, believing that she was pregnant and having heard that the defendant would help her in her trouble, she saw him at his office in Charleston, and informed him of her condition; that he did not treat her on that occasion but referred her to a woman with whom she should consult; that she got in touch with the woman the next day, which was Tuesday, and arranged to meet her the following day, Wednesday, at the office of the defendant; that she and her cousin went there at the appointed time and, after some delay, met the woman and paid her seventy five dollars; that the defendant then appeared from one room of his office; and that she, the woman and the defendant went into his operating room. With regard to what then took place the prosecutrix gave this testimony: “Q. In that room what happened? Just tell the jury everything that happened. A. He performed the abortion. Q. What did you do? A. I got on a table. He put me on a table and covered my eyes and wiped my face with a cold towel. Q. Did you feel anything happening or see anything happen? A. I didn’t see anything happen but I could feel it. Q. What did you feel? A. Something sharp-like. Q. In your abdomen, you mean? A. Yes, sir. Q. Was there any pain? A. Not then. Q. After he operated and after you felt something sharp-like that you described, did the doctor do anything further with reference to packing or anything of that kind? A. He packed me. Q. Did you see 'that? A. Yes, sir, I was still on the table. Q. Did he tell you about that? A. Yes, sir, he told me.” She also testified that she was in the operating room *16about ten minutes; that the defendant gave her no instructions but that the woman told her to take a bottle of citrate of magnesia later; that after leaving the office she fainted, returned to the office where she remained about fifteen minutes, and then left with her cousin and the woman; that two days later, about two o’clock in the morning, she felt a sharp pain in her stomach and “passed” some blood from her vagina; that the day following, she came again to the office of the defendant who then examined her and told her she “was all right”; that a few days later she returned to 'the high school at which she was a. student and attended it regularly until her graduation on June sixth following; that she then worked as a waitress in a restaurant in Charleston; 'that about two weeks after she began to bleed again she went on June thirtieth to another doctor to be examined for insurance which she wished to obtain; that he examined her, told her she was about to have a miscarriage, and sent her to the Salvation Army Hospital in Charleston where that night she was delivered of a baby which died within a few minutes after it was born; and that between the time the defendant treated her in March and the birth of the baby on June thirtieth she did nothing to cause or produce the miscarriage.
The woman who was present when the defendant treated the prosecutrix in March, called as a witness for the prosecution, testified that the prosecutrix came to see her and told her she was pregnant; that she was present when the defendant examined and treated the prosecu-trix in his office; that the prosecutrix became sick while she was on the table; that the witness stood near her and wiped her face, while the defendant examined her; that she saw the defendant have a speculum, an instrument to dilate an opening in which it is inserted, but that she did not see the defendant use any other instrument or insert the speculum in the body of the prosecutrix. When asked the direct question whether an abortion was performed upon the prosecutrix at that time her answer was: “A. Naturally that is what the girl was there for. I am not in position to say just what brought that about.”
*17The defendant admitted that the prosecutrix came to his office in March, 1949, and told him she was pregnant. He testified that at ¡that time he refused to treat her but referred her to a woman who was later present when he treated the prosecutrix; that she returned to his office the next day with the woman; that the prosecutrix was in his office at that time for five or ten minutes; that he gave her a vaginal examination and in so doing used a speculum; that he found some irritation in her tubes and packed her vagina with medicated gauze to relieve congestion. To these questions he gave these answers: “Q. While she was there being examined as you testified, state whether or not you inserted any instrument of any kind into her uterus? A. I did not. Q. In your experience in the delivery of children and the treatment of women for pregnancy, if there had been an instrument inserted in the uterus of this girl in March, 1949, with sufficient force to have injured the scalp of a baby, if there was’ one there, or to have injured the skin, if you would have had a puncture of the membrane or the sac in which the child was contained? A. Absolutely. Q. What effect would that have upon the emission of the foetus? A. It would have caused the loss of the foetus in a reasonable length of time. Q. Would it have been as long as June 30th. A. Oh, no.” He denied that he performed any abortion upon the prosecutrix or any of the four women who testified in behalf of the State that he had committed other abortions on different occasions.
The State grounded its case against the defendant on the theory that in treating the prosecutrix in March, 1949, he inserted into her uterus an instrument which injured the foetus and produced the miscarriage which occurred about three and one-half months later on June thirtieth; and to sustain that position it introduced the testimony of three doctors. These witnesses admitted that it would be unusual for an injury inflicted by an instrument in March to cause a miscarriage three and one-half months later but testified, in answer to a hypothetical question that it could have done so. To counter this testimony the *18defendant produced a doctor, of many years experienced as a specialist in the practice of obstetrics and gynecology, who expressed the opinion that an injury to the foetus caused by an instrument would have ruptured the sac which contained the foetus and produced a miscarriage within days or hours and that a miscarriage as late as three to five weeks after an injury of that type could not have been caused by such injury.
The above recited facts which constitute the substance of the evidence in behalf of the State bearing upon the treatment of the prosecutrix by the defendant in March 1949, and its connection with the miscarriage which occurred approximately three and one-half months later on June thirtieth, do not satisfactorily or sufficiently prove that the defendant injured the foetus by the use of any instrument or that any act committed by him produced the miscarriage. The prosecutrix did not see the defendant use any instrument when he treated her in March 1949. Her statement that she felt a sharp sensation in her abdomen merely indicates that he might have used an instrument, but her testimony does not definitely establish the cause of her sensation. The woman who was present at the time merely saw the defendant have or use a speculum. She did not describe the manner in which he manipulated that instrument or indicate in any way that he used it forcibly or improperly. The testimony of the three doctors that an injury caused by the use of an instrument in March could have produced a miscarriage three and one-half months later is simply an opinion that it was possible that it resulted from an injury inflicted by means of an instrument. None of them stated that an injury caused by an instrument produced the miscarriage or expressed a definite or positive opinion to that effect.
Even if it be assumed, from the evidence, that the defendant, by the use of an instrument, injured the foetus in the uterus of the prosecutrix, the testimony of the doctors produced by the State is merely an assertion that such injury might have caused the miscarriage. In brief, the evidence of these witnesses in behalf of the State on *19the vital point of the cause of the miscarriage is sheer speculation and, at most, creates only a mere suspicion that the defendant is guilty of the offense of which he is accused. The statute which creates the crime of abortion, Code, 1931, 61-2-8, provides that any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and by any of such acts, destroy such child, or produce such abortion or such miscarriage, shall be guilty of a felony. It is manifest that to commit the offense forbidden by the statute the defendant, by some act, must destroy the child, or produce an abortion or a miscarriage. Unless he accomplishes one of these results, he does not commit the offense, and to convict him of the crime of abortion, as charged in the indictment, it was incumbent upon the State to prove, beyond reasonable doubt, as an essential element of the offense, that the miscarriage, or the premature birth of the baby of which the prosecutrix was delivered, was caused by some act of the defendant committed with the intent to produce that result.
If it be conceded that the prosecutrix went to the defendant for the purpose of inducing him to perform an abortion and that he intended and acted to accomplish that purpose, still the evidence does not show, beyond reasonable doubt, that the treatment which he gave the prosecutrix actually caused the premature birth of her child and for that reason it does not support the verdict of guilty returned by the jury.
Proof that the defendant attempted to commit an abortion, but which fails to show that he succeeded in the attempt, is not sufficient to convict him of the offense with which he is charged which is not an attempt to commit an abortion but the commission of an abortion, a separate and distinct offense. A conviction based on mere suspicion of the guilt of the accused can not stand, State v. Crummitt, 129 W. Va. 366, 40 S. E. 2d 852; State v. Hudson, 128 W. Va. 655, 37 S. E. 2d 553, 163 A. L. R. 1265; State V. Beall, 98 W. Va. 189, 126 S. E. 569; State v. Chafin,
*2078 W. Va. 140, 88 S. E. 657; State v. White, 66 W. Va. 45, 66 S. E. 20; and a verdict of guilty in a criminal case, which is without sufficient evidence to support it, should be set aside. State v. Crummitt, 129 W. Va. 366, 40 S. E. 2d 852; State v. Hudson, 128 W. Va. 655, 37 S. E. 2d 553, 163 A. L. R. 1265. “Where the verdict of a jury is wholly without evidence on a point essential to a .finding, or the evidence is plainly insufficient to warrant such finding by the jury, the same will be set aside and a new trial awarded.” Point 2, syllabus, Closterman v. Lubin, 113 W. Va. 353, 167 S. E. 871. Other decisions of this Court to the same effect are State v. Woolridge, 129 W. Va. 448, 40 S. E. 2d 899; Clise v. Prunty, 112 W. Va. 181, 163 S. E. 864; Mingo Drilling Company v. Persinger Supply Company, 111 W. Va. 278, 161 S. E. 234; Armour Fertilizer Works v. Finnell, 110 W. Va. 416, 158 S. E. 510; Bell v. Huntington Development and Gas Company, 106 W. Va. 155, 145 S. E. 165; Jones v. Kessler, 98 W. Va. 1, 126 S. E. 344; Magnet v. Frantz, 95 W. Va. 727, 124 S. E. 117, 37 A. L. R. 1450; Dunbar Tire and Rubber Company v. Crissey and Riley, 92 W. Va. 419, 114 S. E. 804; Hatfield v. Workman, 35 W. Va. 578, 14 S. E. 153; Wandling v. Straw and Morton, 25 W. Va. 692. It is axiomatic that the guilt of a defendant in a criminal case must be established by competent evidence beyond reasonable doubt and that the burden of proving a person accused of crime guilty, not merely by a preponderance of the evidence, but beyond reasonable doubt, rests upon the State. State v. Crummitt, 129 W. Va. 366, 40 S. E. 2d 852; State v. Hudson, 128 W. Va. 655, 37 S. E. 2d 553, 163 A. L. R. 1265; State v. Campbell, 115 W. Va. 198, 174 S. E. 797; State v. Scurlock, 99 W. Va. 629, 130 S. E. 263; State v. Dudley, 96 W. Va. 481, 123 S. E. 241. In my judgment, this basic requirement has not been satisfied in this case and the verdict of the jury, not being supported by sufficient evidence of the cause of the miscarriage, should have been set aside by the trial court. The refusal of the trial court to set aside the verdict and award the defendant a new trial constituted reversible error.
*21The majority concedes that the evidence of a member of the Department of Public Safety that he had seen a female patient of the defendant leave his office and that she was followed to her home and there found to be sick and a statement was taken from her in her room by members of the department was improperly admitted; but the majority disposes of this obvious error by the mere statement that “This testimony should not have been admitted, but we do not see prejudice therein to set aside the verdict.” Though harmless error will not. justify reversal by an appellate court of a judgment in a criminal prosecution, as held in State v. Taylor, 130 W. Va. 74, 42 S. E. 2d 549, that rule, in my opinion, does not apply to the above recited evidence. The purpose for which it was offered, without sufficient additional evidence, was to create the inference that the defendant committed an abortion on that particular patient. Though evidence of the commission of other abortions by the defendant charged with that offense, if not too remote in point of time, is admissible to show motive or intent and that the specific offense is part of a system of criminal action, but not to establish the guilt of the defendant of the specific offense, the evidence relating to the woman who was followed to her home, in conjunction with the testimony of the four women that the defendant performéd other abortions, and the uncertain and speculative evidence with respect to the cause of the miscarriage, undoubtedly influenced the jury in reaching its verdict of guilty.
The admission of incompetent evidence is presumed to be prejudicial and is cause for reversal unless it appears that the verdict of the jury could not have been influenced by it. Slater v. United Fuel Gas Company, 126 W. Va. 127, 27 S. E. 2d 436; Mitchell v. Metropolitan Life Insurance Company, 124 W. Va. 20, 18 S. E. 2d 803; State v. Stone, 100 W. Va. 150, 130 S. E. 124; Alford v. Kanawha and West Virginia Railroad Company, 84 W. Va. 570, 100 S. E. 402; State v. Tygart Valley Brewing Company, 74 W. Va. 232, 81 S. E. 974; Ewers v. Montgomery, 68 W. Va. 453, 69 S. E. 907; State v. Hull, 45 W. Va. 767, 32 S. E. 240; State v. Mus*22grave, 43 W. Va. 672, 28 S. E. 813. The facts and the circumstances disclosed by the evidence, in its entirety, do not overcome that presumption. It can not be said that without this improper evidence the jury would or should have found the defendant guilty, or that it did not influence the jury in arriving at that verdict. The rule with respect to the effect of the admission of incompetent or illegal evidence announced and adhered to in the decisions of this Court has been, stated in these words: “Where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudices such party; and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for the reversal of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be cause for reversing the judgment.” Point 1, syllabus, State v. Hull, 45 W. Va. 767, 32 S. E. 240; State v. Musgrave, 43 W. Va. 672, 28 S. E. 813. In Wheeling Mold and Foundry Company v. Wheeling Steel and Iron Company, 62 W. Va. 288, 57 S. E. 826, this Court used this language concerning the admission of incompetent evidence: “* * * we cannot say what effect such illegal evidence had upon the mind of the jury; and the rule is that, unless it clearly appears that the objecting party was not prejudiced by the illegal evidence, the verdict should be set aside. Dent v. Pickens, 34 W. Va. 240. If it may have prejudiced the exceptor, though it be doubtful whether it did or not, it will be cause for reversal of the judgment. Poindexter v. Davis, 6 Grat. 481; Insurance Co. v. Trear, 29 Grat. 259; State v. Kinney, 26 W. Va. 141; Taylor v. Railroad Co., 33 W. Va. 39; Webb v. Big Kanawha Co., 43 W. Va. 800.”; Michaelson v. Cautley, 45 W. Va. 533, 32 S. E. 170; Dent v. Pickens, 34 W. Va. 240, 12 S. E. 694, 26 Am. St. Rep. 921; Payne’s Case, 31 Gratt. 855; Taylor v. Baltimore and Ohio Railroad Company, 33 W. Va. 39, 10 S. E. 29; Hall v. Lyons, 29 W. Va. 410, 1 S. E. 582. The incompetent evidence was highly unfavorable to the defendant, and necessarily tended to create the impression that, after treating the prosecutrix, he continued to act the part of a persistent abortionist. Its apparent effect was to arouse or reinforce *23in the minds of the jurors an antagonistic attitude and to lead them to believe that he was a constant doer of evil deeds. Nor will it do to say that the same attitude was produced by the admissible testimony of other witnesses that the defendant performed abortions both before and after he treated the prosecutrix. As to the evidence of those abortions the rights of the defendant were safeguarded by the action of the trial court in instructing the jury that it could not affect the question of the guilt or the innocence of the defendant; but as to the improperly admitted evidence no such instruction was given and no such safeguard was provided. It was admitted without restriction and for consideration by the jury for any purpose. In short, the evidence was clearly prejudicial to the defendant and, in my judgment, its admission was reversible error.
The action of the majority in refusing to reverse the judgment of the trial court because “we do not see prejudice” from the evidence improperly admitted is not in conformity to, but is violative of, the above stated rule which is not satisfied by the failure to ascertain, or the inability to detect, the prejudicial effect of incompetent evidence. Contrary to the statement of the majority that “we do not see prejudice therein to set aside the verdict” the rule requires reversal of the judgment and that the verdict be set aside unless it clearly appears that the admission of the incompetent evidence was not prejudicial to the defendant, or if it may have prejudiced him even though it be doubtful whether it did or not. Wheeling Mold and Foundry Company v. Wheeling Steel and Iron Company, 62 W. Va. 288, 57 S. E. 826; State v. Hull, 45 W. Va. 767, 32 S. E. 240; Dent v. Pickens, 34 W. Va. 240, 12 S. E. 694, 26 Am. St. Rep. 921. It was incumbent upon the majority, to escape the requirement of reversal imposed by the rule and to avoid its violation, to “see” clearly that the evidence was not prejudicial rather than “not to see” that it was. By its inverse action with respect to the improperly admitted evidence, the majority departs from the rule, renders it inoperative in a situation in which it *24should apply with controlling force, and, contrary to an unbroken line of decisions of this Court, refuses to reverse the judgment and set aside the verdict. The conclusion reached in that manner is in my judgment palpably erroneous and with that conclusion I can not agree.
The hypothetical question, already referred to, propounded to three doctors who testified in behalf of the State, assumed facts not warranted by the evidence and the action of the trial court in permitting it to be asked and answered was prejudicially erroneous. As already pointed out there is no evidence that the defendant injured the foetus in the womb of the prosecutrix by the use of an, Instrument and the assumption of that fact was mere conjecture. A hypothetical question which assumes facts which are not supported by the evidence should not be submitted to an expert witness, and to permit such question to be asked and answered is reversible error. Cline v. Evans and Tollman, 127 W. Va. 113, 31 S. E. 2d 681; Blair v. Clark Coal and Coke Company, 107 W. Va. 507, 148 S. E. 849; Stonegap Colliery Company v. Hamilton, 119 Va. 271, 89 S. E. 305, 21 Am. Cas. 1917E, 60; Virginian Railway Company v. Bell, 118 Va. 492, 87 S. E. 570. See also State v. Painter, 135 W. Va. 106, 63 S. E. 2d 86; Williams v. State Compensation Commissioner, 127 W. Va. 78, 31 S. E. 2d 546; State v. Taylor, 105 W. Va. 298, 142 S. E. 254; Flood v. Deschamps Motor Company, 203 N. C. 794, 167 S. E. 76.
I am unwilling to acquiesce in a decision which destroys the practice and the personal and professional reputation of a doctor who has devoted many of the best years of his life of almost sixty years to the work of his profession, forever bars him from his chosen field of endeavor, and deprives him of his personal liberty for a substantial portion of his remaining years upon evidence which does not clearly establish his guilt but which instead bases his conviction on grave doubt and mere speculation. Though no culprit whose guilt is established should go unpunished, no person should be condemned as a criminal and punished for a crime when his guilt is shrouded in doubt or *25uncertainty or rests .upon mere speculation or possibility. No man should be convicted, or with my approval will be .convicted, upon evidence which amounts to nothing more than an inference that he might be, or possibly, is, guilty of the crime of which he is accused. In my judgment this intolerable and unwarranted situation is the result of the present decision. To express my disapproval and my disavowal of its fateful consequences to a defendant whose guilt, though possible, has not been sufficiently established by competent evidence, I record my emphatic dissent.
For the reasons stated I would reverse the judgments of the Intermediate Court and the Circuit Court of Kana-wha County, set aside the verdict, and grant the defendant a new trial.
I am authorized to state that Judge Riley agrees with the views expressed in this dissent.