(dissenting). A consideration of the record convinces me that the testimony falls short of measuring up to the salutary rule that it should exclude a reasonable doubt as to defendant’s guilt.
The unfortunate girl in this case had commenced taking pills for the avowed purpose of starting menstruation, and that meant, beyond question, an abortion. She had had pains and been sick, for a day or two at least, before her first visit to defendant, and on the preliminary examination she said that she went to his office to get help to relieve her from the pain she was in. The physician who subsequently attended her at the hospital testified for the state and said that if a miscarriage was in process even at that early stage of pregnancy it would be accompanied by labor pains.
There is an entire absence of any evidence as to when the foetus was expelled, and it is therefore mere conjecture that it happened subsequent to any examination or treatment by the defendant. If it was before, then of course at the time she visited him she was not pregnant, within the terms of the statutes.
The physician who removed parts of the afterbirth, or *585placenta, testified in answer to a question as to whether the condition he then found was due to natural processes: “That would be hard to say, except if I may qualify the statement that miscarriage or abortion does not often happen unless something has been done to force it.” By that is meant— “artificial means.” The following question was asked him and answer made on redirect examination: “Counsel for defense has asked you as to whether or no abortion or miscarriage may occur as a result of falls and bumps and j ars or excessive intercourse. Would you judge from your examination in this case and your experience in regard to cases of a similar nature that that was true in this case ? A. I couldn’t tell that.”
There does not seem to be a sufficient foundation in this case upon which a verdict of guilty should stand, and it is because it has been clearly declared by the legislature, by sec. 4719, Stats., as well as such decisions as Prinslow v. State, 140 Wis. 131, 121 N. W. 637; Abaly v. State, 163 Wis. 609, 158 N. W. 308; B- v. State, 166 Wis. 525, 166 N. W. 32; Kuhl v. State, ante, p. 495, 167 N. W. 743, that in such cases of vital importance to a defendant he is entitled to the deliberate opinion of the court of last resort upon the facts as well as the law, that I am impelled to register this dissent.
Kerwin, J. I concur in the foregoing dissenting opinion of Justice Eschweilee. Owes, J., took no part.