(dissenting from the holding which remands for another trial)
I concur in the holding of the majority that error was committed when the Circuit Court submitted to the jury the State’s contention that the defendant attempted to kill her husband with carbon monoxide gas. After the majority have so held, they remand the case for another trial. I am convinced that the record does not justify the majority in remanding the case, and dissent from that part of its ruling.
Before setting forth the reasons which convince me that the case should not be remanded for another trial, I express my conviction that the evidence does not show that the defendant had a motive for killing her husband.
Motive
Normally, when husband and wife have lived together happily for many years, and it is claimed that one of them killed the other, the record includes facts indicating (1) threats; (2) that one of the spouses had transferred his or her affections to another; or (3) a covetous disposition upon the part of the mate accused of the crime and the existence of a large amount of life insurance or a large inheritable estate. The record before us is free from all such circumstances. The deceased had only $1,000 life insurance, and the record does not indicate to whom it was payable. The Hansens had two joint bank accounts; one, a savings account, had to its credit $2,000, and the other, a checking account, held about $250. Since both husband and wife worked, the accumulations in the accounts were evi*216dently the result of their joint toil. Those items, together with their automobile and a savings bond, payable at maturity, in the sum of $1,000, comprised the entire accumulation of the couple.
No one claims that either the defendant or her deceased husband had become interested in any third person, a circumstance which possibly indicates that the two were leading a reasonably happy married life.
There is no intimation that the defendant ever uttered a threat. The apartment house in which they lived was not soundproof and sounds carried through its walls into other apartments. The Hansens ate virtually all of their meals, including the one at noon, together in their apartment. Since they did but little visiting around, they spent most of their evenings in the apartment or in Mr. Hansen’s workshop which occupied one of the apartment house garages. They had been tenants of the apartment house for four years. The two left together in the morning in Mr. Hansen’s car when they went to work. They came home together in the same vehicle at noon and at the close of the day’s work again rode home together. Thus, they afforded others many opportunities to see or hear them in quarrels if any serious difficulties marred their conjugal relationship. If either ever spoke a cross word or addressed the other in a loud voice, no witness mentioned the fact, with the possible exception of the single incident which is mentioned in the majority opinion. It will be recalled that the latter states that Edna Goheen heard the Hansens speaking loudly in their garage September 9 at about 10:40 p. m. That witness did not see the Hansens but heard voices coming from their garage, which she described as “quite loud talking and quite rapid talking.” She added, “I distinguished no words.” She knew the defendant only *217by sight, and did not state, at least not expressly, that the voices which she heard were those of the Hansens.
The exhaustive search for evidence which the district attorney and the peace officers made following the death warrants the inference that if the Hansens ever quarreled or had any serious differences the prosecution would have become apprised of those facts. After Mr. Hansen’s death the officers made a painstaking search to discover adverse circumstances. The apartment, the garage and the workshop were preempted for approximately two months. The automobile was seized and was still in the possession of the police for at least three months after the death. Three officers were detailed to scrutinize the apartment, the garage, the automobile and the workshop for evidence. They got down upon their hands and knees while searching through the grass and shrubbery adjacent to the apartment house. So completely did they take into their possession the defendant’s belongings that it was necessary for her, when she sought a change of garments, to be accompanied by the sheriff, other peace officers and her attorney when she went to the apartment house. A large number of photographs was taken within two hours of the death showing scenes and objects which the officers deemed important. In the meantime, two officers, who were experts in the art of fingerprinting, sought to “lift” fingerprints off all promising objects. They found none except the deceased’s. Within a very few hours of the death the director of State’s crime detection laboratory came to the scene and from then on gave the case much of his attention. The bumper and the rear nine inches of the ear’s exhaust pipe were removed. Those objects and a large number of others such as wine jugs, vomit, a coffee table, blood stains, floor sweepings, and the defendant’s underwear *218were analyzed chemically and otherwise. In the meantime, the occupants of the apartment house were interviewed. In short, the death, its circumstances and every phase of the defendant’s activities were subjected to the closest scrutiny which analytical police methods offer. Hence, I repeat, if anyone had ever heard the Hansens say an unkind word to one another, that fact would have come to the attention of the prosecuting officials.
The claim that the defendant had a motive for killing her husband rests entirely upon the facts that (1) on Saturday, September 9, at about 7:00 p. m., the Hansens were seen upon the street engaged in conduct which excited attention; (2) about a half hour later, when the Tugmans made their visit, the apartment was in a state of disorder; and (3) Mr. Hansen was plainly depressed in spirit. The evidence indicates that Mr. Hansen was subject to periodical attacks of depression and at those times drank wine. The events of September 9 which are material began at about four o’clock in the afternoon when Mrs. Hansen, came home from her work feeling exhausted and lay down upon a couch. Acting under the direction of a physician, she was upon a diet in an endeavor to relieve her obesity and high blood pressure. Reducing diets are ill adapted to promote good nature. In addition, she had suffered from a stomach disorder for three days. About an hour after the defendant entered the apartment, Mr. Hansen came home bringing with him an armful of groceries and vegetables, including two items which he had selected especially for the defendant. The thoughtfulness which he displayed in that particular shows that a cordial relationship existed between the two. Presently the defendant, upon the request of her husband, cut his hair and about the same time he *219brought her a large glass of wine which he suggested would be beneficial for her. Drinking alcoholic beverages was rarely done by the defendant. She, however, drank the tendered glassful. She had eaten nothing since noon. Two wine jugs and their contents are exhibits in this case. One was taken by the police officers from the apartment and the other from the workshop. The contents of each was examined by chemists in the employ of the State. The wine in one of the jugs contained 17 per cent of alcohol and that in the other was found to be “fortified” wine. Mrs. Hansen readily conceded that the wine which she drank made her feel dizzy when at about seven o’clock she went to the street.
Sometime after Mr. Hansen had returned home he telephoned to his wife’s physician and requested him to call upon the defendant. When it developed that the physician was not available, Mr. Hansen by long distance telephone summoned the Tugmans and told them that the defendant was not well. They responded to the call at once. The deceased’s tender regard for his wife indicates that the two were upon affectionate terms. Both of the Tugmans declared that the defendant appeared to be very tired, a circumstance which could be due to her restricted diet and the fact that she had worked every day of that week. They also described Mr. Hansen as greatly depressed in spirit. Without detailing the circumstances further, I express my belief that they can readily explain the conditions which the witnesses, mentioned in the majority opinion, observed. Those conditions were unfortunate and very likely all regretted them, but the circumstances just mentioned account for them without attributing to the Hansens any ill will for each other. In short, they do not show *220that either had lost affection for the other. That is the only fact material to this case.
Surely the episode just mentioned upon which the majority dwells, and which was not caused by an absence of devotion upon the part of either mate for the other, cannot warrant a holding that the defendant had a motive for killing her husband. Normally, when husband and wife have lived together happily for a score of years and have reared successfully three fine children, one of them does not become suddenly seized with a desire to kill the other. Motives to kill germinate slowly, unless the parties are engaged in a heated controversy. When the faintest thought of killing another enters the mind, it is quickly repulsed. It cannot reappear unless in the interval it has fed upon hate, jealousy or mistrust. In short, affection which has undergone the test of years does not change suddenly into an urge to kill. There is nothing whatever in the record which shows that the defendant ever wished any sort of misfortune to befall her husband. No one claims that she disliked or mistrusted him. To the contrary, the record shows that she was a faithful and intelligent helpmate. She was proud of her children and spoke of her husband’s fine lineage.
The record contains much evidence which shows that, apart from the defendant’s objections to her husband’s use of wine and his inclination to dejection when he periodically resorted to his wine jug, the two led a happy and successful married life. Friends of the Hansens, as well as members of their family, gave direct testimony to that effect. I shall now make a brief review of it.
The Hansens were married in 1922 in Norway, where their three daughters were born. While the children *221were still infants, financial ruin overtook the father. In searching for new opportunities for himself, and under a belief that the New World offered superior educational facilities for children, Hansen came to the United States. In the meantime, the defendant and the three children made their home with the father’s parents. The financial depression which had brought reverses to Hansen’s efforts in his native land denied him, here in America, the longed-for success. Three and one-half years after he came to the United States he returned to Norway where he made a new attempt to establish himself. After a few months’ efforts in Norway he returned to America and obtained employment in Pontiac, Michigan. Before long he left Pontiac and came to Coos Bay in this state where a brother of the defendant lived. His employment in Coos Bay was in menial tasks at low wages, but by 1934 Hansen had accumulated enough so that he was able to send for his wife and children. They reached Coos Bay June 2,1934. By that time the eldest daughter was eleven years of age and the two younger ones, who are twins, were nine. Upon coming to Coos Bay, the three children, as well as their mother, were wholly unfamiliar with our language. Since they arrived in the summer school vacation period, an earnest effort was made to impart to them sufficient familiarity with the English language so that when school opened in the fall the children were able to enroll.
All three of the children proved to be bright students and made rapid progress. Upon graduating from the local high school, two entered the University of Oregon and the third Oregon State College. In due time the three graduated from the institutions. All three always received high grades. Two of the girls, who later received instruction in Union Theological Seminary, *222are now secretaries of the Y. W. C. A. The eldest is the wife of a graduate of a professional school. The record indicates that the parents were always proud of their daughters and constantly lent them encouragement in their educational efforts. The defendant made their clothing and, through careful management, enabled her husband’s small wages to meet all needs. She even accepted the employment in which she was still engaged at the time of her husband’s death so that the children could have spending money while in college. It is plainly evident that the parents’ happiness had to come to them through their mutual affection and the satisfaction derived from their children’s progress. They had no means whereby they could gain happiness from any other source. Children do not achieve the success of the three which we have mentioned in the absence of happy home conditions, accompanied with a family spirit which encourages them to put forth their best endeavors while they strive for the enduring satisfactions of life. The Hansen home must have been a harmonious one. Meanness, baseness and unworthy purposes evidently never entered it. The parents set as the goal for the family’s common endeavors achievements worthy of inscription upon sacred edifices. Evidently the defendant discharged her full part in imparting to the children high aspirations, for, it will be recalled, she had exclusive custody of them until the two younger ones were at least nine years of age.
About the time when the children had completed their schooling Mr. Hansen established himself in a small business in Corvallis, which consisted in part of repairing electrical appliances and doing odd jobs. The majority opinion mentions his shop, which was nothing other than one of the garages which formed a part of the Wilder Apartments. His shop and garage *223were adjacent to one another. He frequently worked in the shop until late hours of the evening.
The defendant testified that as long as the family was restricted to the close “budget” which it had to observe while the children were obtaining their education, the purchase of a home could not be considered, but she added, ‘ ‘ The next accomplishment after we felt we had the girls’ education finished, then the next step of our lives was to get our own home over here. ’ ’ Sometime prior to September 9 the Hansens had viewed some lots and by September 9 had selected the one which they preferred. They had discussed plans for their new home, and in their apartment at the fatal hour were plan books which they had consulted. While the Tugmans were making the visit mentioned in the majority opinion, the telephone rang and when Mr. Hansen answered it he made an engagement with a real estate man for Monday as the time for consummating the purchase of the lot. Thus, at the very moment when the State claims that the defendant was intent upon killing her husband, the Hansens were about to purchase a lot and construct upon it their home. Without pursuing this, matter further, I repeat that the record contains no evidence whatever showing that the defendant had a motive for taking her husband’s life. It does not indicate that she ever manifested toward him an inimical attitude or desired that any harm should befall him. If the incidents described in the majority opinion can be deemed proof of motive, then every woman who is married to a man who periodically drinks likewise has a motive for murdering him.
Sense of Guilt
It will be recalled that the State contends that the defendant not only killed her husband, but also en*224deavored to make it appear that he had committed suicide. The majority attributes to the defendant a sense of guilt. It declares she wiped away the blood so as to induce those who might come upon the scene to draw erroneous conclusions as to the place and cause of death.
After the death, the defendant went to Mrs. Love-land, the manager of the apartment house, and sought help. At that time there were, in plain view, upon the defendant’s dress, shoes and stockings, large blotches of blood. Mrs. Loveland saw them, as did others who shortly came upon the scene. If the defendant’s purpose in wiping blood from her husband’s face was to conceal the purported crime, it is impossible to understand why she neglected to change her clothes before calling upon Mrs. Loveland. Shortly, when the sheriff and police officers came to the place, the defendant described to them, voluntarily, the manner in which she had wiped away blood, and told the investigators that blood had flowed from her husband’s ears, mouth and nose. Thus, far from endeavoring to conceal the fact that her husband had bled, she told about it.
The prosecution claims that the defendant sought to make it appear that her husband had committed suicide. If the defendant intended to make the death appear to have been a suicide, she was afforded an excellent opportunity within two hours after death occurred to serve that purported purpose. I shall explain. The local coroner reached the scene of the death at 2:15 a. m., and presently he had, what he termed, “quite a conversation” with the defendant. In its course he asked her “rather pointedly”, so he said, “Mrs. Hansen, do you think that your husband killed himself?” Her answer, according to the witness, was “No”. A few days later, the defendant was questioned *225extensively in the office of the local district attorney by that official, in the presence of three police officers and her own attorney. Neither the defendant nor her attorney interposed any objections whatever to the numerous questions which were propounded, not only by the district attorney, but also by the police officers. During the questioning the defendant was asked whether her husband had ever mentioned suicide. She replied that at times, when he was drinking, he would say, “I am no good for the family; I am tired of life.” But that he made statements of that kind only when he was drinking and that they did not worry her. She added that she always told him, “Please, Sig, don’t you ever talk like that again.” When she appeared before the grand jury, she was asked a similar question and made a similar reply. Thus, it is seen that she spurned repeatedly opportunities afforded her for embracing the suicide theory, had she been inclined to fabricate. She swore that when her husband was not drinking he was “a very happy man” and “proud of his family”.
During the probes just mentioned the defendant was asked whether Mr. Hansen had any enemies, and answered “no”. She likewise was asked whether he carried large sums of money upon his person, to which she replied in the negative. Seemingly, the questions about suicide induced the officers to inquire “He didn’t have a gun?” She replied, “No, he never had a gun.” Then the deputy sheriff asked her: “Mrs. Hansen, have you ever had occasion to suspect Mr. Hansen might be having affairs with other women?” She replied: “No, definitely. I never know that he left me for an hour. I know absolutely he was faithful in every way to me. I mean, that is something that I never worry about. I know he never surely would have anything like that *226on Ms mind.” The peculiar grammatical construction will be noticed. Witnesses declared that it was difficult to understand Mrs. Hansen on account of her Scandinavian accent and grammatical construction.
It is unnecessary to go on. Surely, if the defendant had in mind to disguise the death as suicide, she would have embraced the repeated opportunities afforded her.,_AShe spurned them all. In addition, she rejected numerous other opportunities which were afforded her to cast suspicion upon an “enemy”, a robber or some other evil person. In short, I do not believe that the majority are warranted in their statement that the evidence indicates that the defendant displayed a sense of guilt. To the contrary, the lengthy and detailed statements which she gave to the district attorney and to the grand jury indicate very clearly that she had nothing to hide.
Death did not occur in the manner claimed by the State
The State claims that the defendant entered the garage about 11:00 p. m. and found her husband lying upon the floor in a state of helpless intoxication. Blood taken from his body was found to contain 0.27 grams of alcohol for each 100 cc’s of blood, according to the State’s expert. That quantity of alcohol, so the witness just mentioned said, would influence the movement of any person and would make many individuals “drunk”. According to him, “We have had them sent in and die from that amount of alcohol in their blood.” He expressed the belief that the decedent was drunk at the time of death. The State contends that after the defendant had found her husband in a helpless condition she dragged him to a place between the rear bumper of the car and the nearby door of the garage, preparatory to killing him. I shall now give the State’s further contentions in the words its district attorney uttered while *227he was making the State’s opening statement to the jury. He said:
“She placed him in this corner between the door and the bumper with a clearance of approximately 14 inches, and that she then put him in a position of a semi-sitting, semi-prone—not sitting erect, not flat on the floor, you might say halfway in between. That she then went around here and opened the front door of the car. * * * That she pushed the starter button trying to start the car, and that the car in fact at that time was in reverse gear. That the car rolled back when she pushed the starter button, in this direction, and that the bumper caught Sigurd Hansen across the chest. * * * That the force from that starter moving that car was such that it immediately forced all the air out of his lungs so that he was unable to make any sound whatsoever, * * * . ”
The State’s theory was not that the defendant intended to kill her husband by backing the car upon him, but that she had intended to start the motor and have the exhaust fumes poison him. It claims that the defendant, being unfamiliar with the operation of an automobile, unwittingly caused the car to back up through the power supplied by the battery, when, in fact, she had intended to start the motor.
The excerpt which we just quoted from the district attorney’s statement, as well as the recitals of the majority opinion, render it clear that the State contends that the rear bumper of the car crushed the deceased’s chest and thereby brought death to him.
The lower edge of the bumper of the Hansen car was 13y2 inches from the ground. Hansen was five feet, eight inches, tall. Dr. Richardson, director of the State’s crime detection laboratory, performed an extensive autopsy upon the body of the deceased. He *228swore that the third, fourth, fifth, sixth and eighth ribs on the right side and the fifth, sixth, seventh and eighth ribs on the left side were fractured. The eighth rib is near the abdominal cavity. The following is taken from Dr. Richardson’s testimony:
“Q Did you determine from the injuries what position the body was in when it received the injuries ?
“A The body was either upright, it was in an upward manner, upward fashion, as drawn.
“Q In an upright position?
“A Yes.”
He added that he, of course, did not know where Hansen lay nor the position in which he was posed when death came to him.
Obviously, it is necessary for any victim who is seated upon the ground to be in an upright position if his eighth rib is to be fractured by the bumper of an automobile, especially if the individual is only five feet, eight inches, tall. When a person is seated upon the ground in an upright position, his eighth rib is as near to the ground, if not nearer, than the lower edge of an automobile bumper. If the person’s position is not upright, or if the object against which his back rests yields under pressure, it is impossible for a bumper, upon backing against him, to fracture any of his ribs except possibly those in the mid-chest area.
Dr. Richardson was shown a photograph (Exhibit A) taken of Hansen’s body lying in the garage in the exact position in which it was found by the police when they came upon the scene. No one had disturbed the body after Mrs. Loveland was summoned to the garage by the defendant. I now quote from Dr. Richardson’s testimony:
*229“With the body in the position in the corner here as demonstrated in Exhibit A, and the car moving backward and the body in that position, the injury would not result with the body in the position as it is in Exhibit A.”
A glance at Exhibit A shows that the bumper was so high that it would have passed over Hansen without touching any part of him except possibly his head.
By reverting to the district attorney’s opening statement, it will be recalled that he did not contend that Hansen was seated upright when the bumper purportedly struck him. His exact words were “semi-sitting, semi-prone—not sitting erect, not flat on the floor, you might say half in between. ’ ’ His words were not slips of the tongue but were carefully chosen. Plainly, a man besotted with wine could not sit upright. His condition would render him prostrate or recumbent. The State expressly claims that Hansen was reclining partly against the door and partly upon his flexed left arm. The State was forced to take that position because (1) it claimed that Hansen was helplessly drunk; (2) it had to account for the fact that more ribs were broken upon the right side than upon the left; and (3) it had to assign to Hansen a position in which the rear bumper of the car would exert upon its victim an upward pressure. The significance of the purportedly upward pressure will shortly be developed. A simple experiment with one’s self will readily show that if Hansen was slumped against the door and was resting in part upon his elbow, the bumper could not have struck his eighth rib. Let us bear in mind that the eighth rib on each side was fractured. If Hansen was in the position which the State contends, the bumper of a car might have come in contact with his shoulders, but, if so, it would not have produced the *230results ‘which Dr. Richardson swore he found, and which I shall presently describe.
The theories and deductions of Dr. Richardson are the mainstay of the State’s case. He reached them after he had made a dissection of the deceased’s body. He deduced that “some tremendous force” struck Hansen in that part of the chest which extends from the eighth rib to and including the third. Dr. Richardson employed many times the expression “tremendous force”. He explained that the “tremendous force” had to be not only horizontal in direction but also upwards. He stressed the word “upwards”. According to him, the tremendous force, moving not only horizontally but also upwards, produced instantaneous death. It afforded no opportunity for the voluntary utterance of a sound. The force was so great, according to Dr. Richardson, that no human power could have accounted for it—it had to be mechanical. After he had distinguished between a “sustained” pressure and a “sudden” pressure, he said, “I feel it was a sudden pressure” that caused the death. Presently he spoke of it as “a sudden crushing injury”.
All of the above was essential to Dr. Richardson’s theory, as I shall now show. According to him, the “tremendous pressure” which suddenly struck Hansen forced all of the blood in his body above the eighth rib into the shoulder muscles and skull. It likewise forced the air out of the lungs into the parts above the lungs. The following is taken from his testimony:
“My opinion is that first, a crushing injury or some injury hit the chest, blowing the air upwards, and that it was an upward motion or hit something to cause it to pop the lungs upwards and not have the air shot downwards into the remainder of the body. It didn’t shoot into the legs. It shot up into the head and up into the shoulder areas here, this *231neck muscle. * * * My opinion the wound that caused death was the crushing injury to the chest cage and the resultant emphysema, air embolism, and so forth, popping and crushing the lung tissues.”
Having given that testimony, he was asked, “What actually happened to the lungs, in layman’s language % ’ ’ He answered, “Well, they blew up inside of the body like a balloon.”
Dr. Richardson found nothing except normal conditions in the areas below the eighth rib. There were no excessive quantities of blood and no air bubbles in the abdomen and lower limbs, but he discovered air bubbles in the tissues of the chest, the outer surface of the lungs in the neck and head. Likewise, he found such an unusual amount of blood in the chest and neck muscles that they were discolored. Going on, he added, “These multiple blood vessels that compose the brain and the vital centers of respiration all had hemorrhage about them.” In that way, he showed that the sudden burst of blood which was forced upward by the tremendous pressure was larger in volume than the blood vessels could hold.
In addition to giving the above description of the conditions he found, Dr. Richardson testified that “The lungs themselves were broken on both right and left sides * * *. Each of the lungs were torn and ripped. ” Although he found no direct injury to the brain, yet, referring to it, he mentioned “pinpoint areas, all of which were filled with air.”
It is seen that Dr. Richardson described a “tremendous pressure” which struck the chest of the deceased in a horizontal and upward direction with such violence and suddenness that it forced the blood and air upwards. Under the pressure, the lungs burst and *232emitted air into the tissues of the shoulders, neck and head. The blood took not only the course which has already been mentioned, but also the one which I will now describe.
When the blood was violently forced out of the chest area into the neck and head, it burst out of the mouth and ears. So Dr. Richardson swore. Evidently the parts of the arterial system which are in the shoulders, neck and head are not designed to contain the quantity of blood which the tremendous pressure forced into them; therefore, it had to force an outlet. Propelled by the great pressure, the blood flowed out through the ears and mouth. But it did something more, according to Dr. Richardson. He testified:
“Well, that particular time the eardrums could have broken and small blood vessels, which are arterials or tubes, could have popped and squirted out blood.”
He gave more testimony upon the subject, but the foregoing suffices for present purposes. Thus, it is seen that Dr. Richardson believed that it was possible that blood squirted out of the deceased’s ears when the bumper supposedly struck his lower chest.
Dr. Richardson thought that a car bumper was capable of inflicting the injury which he had described, provided the car, in moving backward, exerted a pressure of 500 or 600 pounds. He called attention to the fact that the upper and lower sections of the Hansen bumper, when viewed crosswise, curved in materially toward the car. Dr. Richardson thought that the curvature could have assisted in effecting the upward pressure necessary to the infliction of the injury. He also thought that it was necessary that Hansen was in a semi-reclining position when the bumper collided with him; provided, of course, that it did collide with him. *233The natural curvature of the spine, the curved areas of the bumper and the supposedly semi-reclining position of Hansen enabled the bumper, so Dr. Richardson believed, to exert the needed upward pressure. In that way, Dr. Richardson’s theory and deductions accounted for the conditions which this opinion has mentioned. I pause to observe that, since the lower half of the bumper curved inward materially, the eighth rib of one who was seated upon the ground would not have been touched by any part of the bumper except its central part, if the person was sitting upright. If he was in a reclining position, such as the one essential to Dr. Richardson’s theory, the bumper could not have touched his eighth and other lower ribs.
The State presented evidence which, it contends, shows that blood did in fact spurt out of Hansen’s ears and spattered in numerous small drops on the lower lefthand corner of the garage door. By lower left-hand corner, I have in mind a person standing in the garage and facing the door. Hansen’s body was found near the lower lefthand corner of the garage door. The spattered small drops of blood on the lower left-hand corner of the garage door are highly important. I shall now consider them.
One of the State’s witnesses, when asked whether he saw “anything unusual” about the spattered drops just mentioned, answered that the shape of the drops indicated “upward travel”. He added, “In other words, I might explain that the shape of the blood spots in certain instances, the heavy part of the spot being to the downward part and then a long thin trail leading from that out, indicating the direction of travel as the blood landed on that surface.” Next, he said that he detected indications which showed that an effort had apparently been made by someone to wipe *234blood off the lower part of the door. Further, the witness testified: “The most blood seemed to be in a splattered appearance in a lower portion of the southernmost section of the door.” Those splattered drops reached a point, according to him, “about 14 inches in height.” Near them he found “another area a little higher.” The witness thought that the spots showed that blood had spurted out of a source lower than the spots; in other words, the blood spurted upwards. Another witness for the State, Jack Bearss, also described the spattered drops of blood upon the door. He referred to them as follows: “Down in this corner which is the lower left corner from the floor up about eight inches, small reddish-brown spots appear. And they had the appearance of being made from the bottom up. In other words, they struck out to a thin line at the top from about eight inches from the floor. ’ ’
A photograph was made of the area of the door to-which the two witnesses had referred. Below is a copy of it.
The irregular circle which appears upon the photograph was drawn by Bearss, who is the assistant director of the State crime detection laboratory. Bearss. also drew in the circle the two letters “U U” which appear on the photograph. He placed the circle upon the photograph to indicate the area from which betook samples of the spattered blood. Before the photograph was taken, a ruler was placed within the area photographed. It appears on the right edge of the latter and is 12 inches high. The 10-ineh mark upon the ruler is at the exact point of the lower molding of the panel. None of the spattered blood, therefore, appears to have been more than 14 inches above the floor. Some of the spots were as low as eight inches, and it will be remembered that one of the two witnesses
*235
just mentioned thought that someone had wiped out spots still lower.
The photograph to which I have just referred is a part of the record and is there identified as State’s Exhibit GG. The small blood spots which Bearss recovered became identified as Exhibit TJU2. The State deems the spattered blood spots as highly important *236and as constituting one of the chief features of the evidence. I now quote from its brief:
“Perhaps the most important single piece of evidence establishing the corpus delecti [sic] is State’s Exhibit GG, being an enlarged photograph of the blood spots on the inside of the garage door, which, when analyzed as Exhibit TJU2 was identified scientifically as being human blood (Tr.p.593). An examination of GG discloses clearly that the blood was sprayed in an upward direction as evidenced by the location of smaller specks of blood above larger ones, this being a natural phenomenon when a liquid is sprayed, the smaller particles ‘bouncing’ from the larger ones along the direction of the line of force. There is no possible explanation other than that this blood was sprayed upward to create this physical fact. When tied in with Dr. Richardson’s testimony that the pressure applied to the victim’s chest was such that blood could spray from his ears, and also when considered in connection with State’s Exhibit Y, being a close-up of the right side of the face of the victim wherein blood clearly appears inside the ear canal, the conclusion becomes irrefutable that it was the victim’s blood.”
It will be observed that the State’s brief deems the spattered blood drops as “perhaps the most important single piece of evidence”. The language just quoted says that the drops show that “the blood was sprayed in an upward direction * * * this blood was sprayed upward”.
I agree that Exhibit GG and the blood spots shown by it are highly important, but I am satisfied that they refute conclusively the State’s contention that Hansen was in the position attributed to him by the State when his life was taken. It is impossible that he was in such a position if blood burst from his ears and, moving upward, spattered upon the door. The lower edge of *237the bumper was 13% inches above the floor. If the bumper struck Hansen’s chest, his ears must have been at least a foot higher. Therefore, if blood spurted out of his ears, it would have spattered upon the door no lower than 25 inches above the floor. Yet, as will be seen by reverting to the photograph, the larger blood spots were eight inches above the floor and none were higher than 14 inches. Some, which had been partially effaced, were even lower than eight inches. If those blood spots spurted out of Hansen’s ears, his head must have been on the floor adjacent to the door. No other conclusion is possible. Yet the State repulses all contentions that Hansen was lying on the floor or roadway when he was struck. As a matter of fact, the left side of his shirt was torn and there were rubber marks upon the shirt which a chemical test showed came from an automobile tire. For the foregoing reasons, I am satisfied that the death did not occur in the manner claimed by the State. But there is still another reason.
The record contains no evidence showing that the Hansen car caused the death
It will be recalled that the State claims that the defendant planned to cause her husband’s death by carbon monoxide poisoning and that, while intending to start the motor, she unwittingly caused the car to back up through the energy supplied by its battery. At that instant, according to the further theory of the State, the deceased was slumped against the garage door to the rear of the car. Previous paragraphs of this opinion take notice of Dr. Richardson’s testimony that a “tremendous pressure” was necessary to have caused the injuries which he found when he dissected the deceased’s remains. It will be remembered that he expressed the belief repeatedly that the pressure *238which delivered the fatal blow had to be, not only tremendous in its power, but also sudden in its application. A sustained pressure could not have produced the kind of injury which Hansen received, so Dr. Richardson swore. In addition to declaring that no human power could have inflicted the injury, Dr. Richardson ventured the belief that a mechanical device, exerting a pressure of 500 or 600 pounds, might have been sufficient.
The State claims, as we have seen, that, through energizing the car’s battery, the defendant backed up the car upon her husband and thereby delivered to him the “tremendous pressure” which crushed out his life.
The record contains no evidence whatever that the battery in the Hansen car was capable of delivering the tremendous pressure which was essential to crush the deceased’s chest. To the contrary, when experts in the employ of the State attempted to test the battery of the Hansen car for the purpose of determining whether it could have exerted the required pressure, they found that the battery was completely exhausted. It gave off not even a single electrical spark. The test was made by Oscar A. White, research engineer for the Materials Division of the Oregon Highway Commission. When Mr. White made the test, he was accompanied by the district attorney and three peace officers. He found that the Hansen battery “showed no charge in any cell.” He then resorted to another battery which he termed a “booster battery” and with it sought to recharge the Hansen battery. After his efforts had continued for “possibly ten minutes” he found that the Hansen battery was completely spent and would not recharge. The effort was then discontinued.
*239The experiment which I have just mentioned was made December 7. The death occurred the previous September 9. In the meantime, the Hansen car had been in the exclusive possession of the State. The record discloses that, upon assuming possession, the State moved the car from the Hansen garage to one of its own choice and returned it to the Hansen garage so that Mr. White could make his experiment. In moving the car, the State towed it, that is, it did not operate it upon its own power.
December 7, when Mr. White discovered that the car’s battery was exhausted and could not be recharged, he removed it and substituted in its place the booster battery. No one testified whether or not the booster battery was of the same voltage or manufacture as the one which had been taken out of the Hansen car. Nor is there any evidence as to the condition of the Hansen battery on the night of September 9.
After Mr. White had substituted for the Hansen battery his booster battery, he then made a test which I shall now mention briefly. He had brought with him, what he termed, a weighing device. He described it as a calibrated spring. He placed the device between the rear bumper of the Hansen car and the garage door immediately to the rear. After he had done so, the car’s starter button was energized and when the car, operating upon the substituted battery, backed up, the calibrated spring registered 500 pounds. Then the experiment was repeated. The second time the register indicated 590 pounds. As a result of the experiment, it is claimed that the Hansen car was capable of applying the tremendous pressure which Dr. Richardson swore was necessary to have inflicted the injury which the deceased received. I am satisfied *240that the evidence does not so indicate. It goes no further than to show that the “booster battery”, but not the Hansen battery, was capable of exerting a tremendous pressure. So far as this court knows, the Hansen battery, on the night of September 9, may have been capable of doing nothing more than generating a few electrical sparks.
It will be recalled that Dr. Richardson swore that the blow which crushed the deceased’s - chest had to be, not only a tremendous one, but also sudden in its application. Mr. White’s experiment showed that the booster battery was capable of delivering a pressure of 500 or 600 pounds, but indicated nothing concerning the suddenness with which the pressure was delivered.
Still another fact remains for mention. When Mr. White made his experiment, the space between the rear bumper and the garage door was unoccupied. Therefore, it was available so that the car, in backing up, could achieve momentum. Velocity is indispensable in the creation of power. The space between the bumper and the door, according to a witness who made careful measurement, was only 10 inches. Projecting beyond the bumper were two bumper guards of the kind which are usually seen upon cars. They extended two or two and one-half inches beyond the bumper, thereby reducing to that extent the available space. If we ignore the guards, there was available to the car, in a movement to the rear, only 10 inches. If a human being lay to the rear of the bumper and against the door, his body would, of course, materially reduce the 10-inch space, if it did not, in fact, occupy all of it. It is true, as the majority opinion says, that the door would “give” three inches or so when sufficient pressure was applied to it, but before the door could give, the car would have to move and hit the door. No one *241testified that even the booster battery conld have moved the car if a body was wedged in between the bumper and the door. Much less did anyone indicate that the car could have achieved sufficient velocity in the available space to be capable of delivering the sudden blow which Dr. Richardson swore was essential to the death. Let us bear in mind that he swore that a sudden, not a sustained, pressure was essential.
Without analyzing the evidence further, I express my conviction that it fails to prove that the death occurred in the manner claimed by the State. In fact, it shows convincingly that the death could not have occured in that manner. It is not amiss, however, to add that the tear in the deceased’s shirt, the tire mark found upon it, and the fact that the deceased’s upper plate had somehow been forced partly into the roof of his mouth are all circumstances which may indicate a manner of death very different from the one deduced by Dr. Richardson. The latter, although mentioning the tear in the shirt, the tire mark upon it and the impacted upper plate, did not attempt to account for any of them. The majority opinion attributes to counsel for the defendant a statement, in his argument before this court, that “there was ample evidence that Hansen’s death occurred in the garage.” The attorney who made the statement did not represent the defendant in the trial court. Defendant’s printed brief says: “The most that can be said for the evidence in this case is that Mr. Hansen’s death may have occurred in the garage.”
The conclusions and deductions expressed by me in the foregoing paragraphs are not dependent upon evidence which a jury could have rejected. They are based upon testimony given by witnesses for the State or upon uncontradicted and unchallenged testimony *242given by the defendant. I have availed myself only of evidence which neither a judge nor a juror could ignore. The physical facts of this case about which there can be no dispute show that the death could not have been caused by the bumper of the car while the latter was in the garage.
The majority orders the case remanded for another trial. Surely the State presented during the trial all of its evidence. As I pointed out, the death was followed by a painstaking and thorough investigation. There is no reason to suppose that the State withheld part of its evidence and will present it upon another trial. Even in civil cases a plaintiff must offer all of his evidence at the trial. "We have repeatedly held that he cannot experiment with a part of his proof upon a first trial and then, if the experiment proves unsuccessful, win, at our hands, the right to a second trial.
The best that can be said for the State’s case is that the death is a mystery, but mysteries are never submitted to a jury for solution. They may be solved by fiction writers, but neither fiction nor mystery can support a verdict of guilt. If, when all of the evidence has been analyzed, the man on the bench finds no substantial evidence capable of overcoming the presumption of innocence and of pointing to the defendant as the wrongdoer, he cannot submit the case to the jury.
I have carefully read, considered and analyzed the entire record. My examination of it satisfies me that the State failed to prove the guilt of the defendant. I, therefore, believe that the reversal should be accompanied with the entry of an order of dismissal.
TOOZE, J., concurs in this opinion.