concurring in part and dissenting in part.
I agree with the majority that this case should be reversed, but I would put the reversal on an additional ground, and that is that there is no substantial evidence to connect defendant with the alleged homicide.
We must remember that the conviction of defendant is based on circumstantial evidence, and that the finger of guilt must point unerringly to her before she may be found guilty. If there is any reasonable hypothesis for the death, other than that charged in the indictment, defendant cannot be found guilty. The burden of proof is upon the state to dissipate every other reasonable theory of death.
As stated in the prevailing opinion, opportunity alone is insufficient to warrant conviction. My view is that the defendant had the opportunity to kill her husband, but that the state failed to prove that she was capable of committing the act charged.
The state had no confidence in the theory, now adopted by the court, that the evidence is sufficient to warrant a finding that the defendant backed the car in a normal fashion into her husband. It embraced the theory, and adhered to it, throughout the trial and in this court, that defendant was seeldng to asphyxiate her husband by the exhaust gas from the automobile, and the gear shift being in reverse, the ear was accidentally propelled, through the energy of the battery, backward into decedent.
The prevailing opinion reverses the case because that theory was submitted by the trial judge to the jury. I quote:
“In our opinion the court’s denial of the motion and the giving of the instruction constitute reversible error for the reason that the theory embodied *244in the instruction rests upon speculation. It requires an unfounded assumption that the car was in reverse gear at the time that the defendant got into it and started the motor, whereas there is no proof and no basis for an inference that this was the fact. The court cannot take judicial notice, as the state would have us do, that cars are usually left in reverse gear when parked in garages. Nothing in common experience teaches us that this is so.”
The state’s theory, taken from its brief, follows:
“As to the facts establishing premeditation, malice and the basis for the State’s theory that the defendant intended to take the life of the victim through the use of carbon monoxide, the propositions being inseparable as far as evidence is concerned, the following clearly establish all of them.
“It is common knowledge that carbon monoxide is frequently employed to commit suicide, and that many persons resorting to this means of self-destruction locate themselves near the source of the exhaust fumes. It is also common knowledge, based on human experience, that persons whose intent is to commit homicide often attempt to disguise it as suicide. It is also common knowledge that cars parked in garages are often left in gear, especially reverse gear, so that when the vehicle is started it will move, if at all, back out of the garage rather than against the wall in front of the car.
“The matter of differences between the defendant and the victim has already been discussed. The record also shows that the defendant knew that the victim had talked of committing suicide, and had discussed the same with others, particularly William Tugman, Jr., the defendant having been in the small apartment of the Hansens with the Tugmans during the time of their visit when the victim discussed suicide.
“It is also evident from the facts that the victim could not possibly have taken his own life in the *245manner in which he met his death, this being a physical impossibility.
ii# # * * *
“That the defendant did not know how to drive a motor vehicle is undisputed. However, she had been a frequent passenger in a car for about fourteen years and would presumably have an understanding as to the operation thereof.
i Í ^ w íí
“It should be noted that it is most unusual to take the life of a human by crushing them between a bumper and a closed garage door, a person intent on homicide normally employing some other means such as stabbing, striking, etc.
Í 6 # # * * *
“The facts are so inter-related in the case that it should be borne in mind that those substantiating the corpus delecti, previously set forth, and those to follow relative to the establishing of the homicide by the accused are also important in the overall picture of proving premeditation, malice and the basis of the State’s theory of homicide attempted to be disguised as suicide.”
If we cannot assume that the gear shift was in reverse, as the prevailing opinion holds, how in the world can we assume that a woman, concededly having never driven a car, got into the vehicle, inserted the key in the switch, turned it, not to the left, which would not have started the engine, but to the right, pressed the starter button, put the gear shift in reverse, eased the car backward without noise, sufficiently to kill her husband (as Dr. Richardson said, 500 or 600 pounds pressure), then put the gear in forward and eased the car ahead to its previous position with the front bumper almost to the wall of the garage?
It is submitted that defendant, having ridden in a car for some 14 years, would be able, through observation, to accomplish the above intricate operation. It *246is my opinion that that assumption is mere speculation —unreasonable and absurd. To go through the steps above outlined would have taken an experienced and expert driver. Had defendant, being without experience as a driver, driven the car, under gas, backward, it is reasonable to suppose that the car would have gone through the garage door, which was loose at the bottom, clear out into the street. The apartment house witnesses, who appeared to have seen a great deal but heard little that evening, would certainly have heard the noise made by the above assumed operation.
There is a significant failure of proof of defendant’s finger prints in any respect whatsoever. The officers sought to obtain finger prints but none were available. Had defendant motivated the car, there certainly would have been finger prints either on the door handle, the steering wheel, the gear shift or the key.
The majority opinion ascribes defendant’s actions to that of guilt. It is my opinion that every action of defendant noted was compatible with innocence. It is obvious from the record that the decedent was given to excessive drinking, and that he was drinking the evening of his death. Would it not be a normal action for his wife to bring him back from the street where he might make a spectacle of himself. The breaking of the furniture in the apartment could be reasonably laid to the actions of an inebriated man. The endeavors in the garage, as ascribed to defendant, to get her husband into the apartment house and wipe up blood could be reasonably imputed to that of a wifely act. The inconsistent statements of defendant might just as well be attributed to fright, forgetfulness, or even design in an effort to cover up a situation which im*247pliedly involved her. The fact that defendant did not answer the door buzzer when her daughter and son-in-law arrived means nothing since defendant did not know of their coming to the apartment from Eugene. It is reasonable to suppose that she did not want to admit a stranger to the apartment to find her husband in a drunken condition and the premises disordered.
I am unable to find a motive on the part of defendant to slay her husband. In the early part of the evening of the tragedy, defendant cut decedent’s hair, and when the daughter and son-in-law arrived, the daughter and the defendant went out for a bit of food while the deceased and his son-in-law remained in the apartment. The two, after eating, returned to the apartment, and, after a visit, the daughter and her husband left the apartment to return home accompanied by decedent, who stated that he was going out to put his car in the garage. There is no evidence of threats against the deceased by the defendant, nor is there any evidence of serious trouble between them. No reasonable motive for the killing is advanced by the state. In any event, motive, like opportunity, unaccompanied by substantial evidence that defendant perpetrated the alleged deed, is insufficient to warrant a conviction.
The evidence shows that Dr. Richardson performed an autopsy, which included an examination of the lungs, on the body of deceased and found no carbon monoxide in his body. We quote:
“Q Did you test to see if there was any presence of carbon monoxide in the body?
“A Yes, I did.
“Q What did you discover?
“A Well, I went back and ran several chemical tests on it, and I could find no indication of carbon monoxide in the body.”
*248Since it was the state’s theory that decedent was killed by the movement of the automobile backward, and that his body was crushed between the rear bumper of the car and the closed door, it unquestionably was considered unreasonable and illogical, and, indeed, impossible, for the car to have been moved backward by gas propulsion -without the presence of carbon monoxide in decedent’s lungs. The state, therefore, arrived at what was thought to be the only reasonable theory under which defendant accomplished the homicide, and that is the reverse-gear-battery operation with the intention of defendant to asphyxiate her husband. As hereinbefore pointed out, the majority opinion rejects that theory. It adopts the theory, rejected by the state, which, as already stated, is unreasonable in fact and devoid of demonstration. It does not point out the modus operandi by which defendant propelled the car backward and again forward. Its conclusion is based on the proposition that it was not “impossible for the defendant to have performed the act which someone unquestionably performed and which the evidence tends so strongly to show must have taken place when she and her husband were alone in the garage.” I have always understood that law suits are tried on probabilities rather than on possibilities because anything is possible under the sun.
Nor does the concurring opinion of Chief Justice Brand disclose how the movement of the car by defendant could have effectuated the death of the deceased. He relies on § 3 of Article YII of the constitution where it is stated that we are not permitted to re-examine the facts tried by a jury unless we can “affirmatively say there is no evidence to support the verdict. * * He concludes by saying that he is *249unable to “ ‘affirmatively say there is no evidence to support the verdict.’ ” Construing the aforementioned constitutional provision, we have said that the verdict of a jury cannot be disturbed “if there is any competent evidence to support each material allegation contained in the indictment.” State v. Broom et al., 135 Or 641, 649, 297 P 340. Since the defendant challenged the sufficiency of the evidence by a motion for a directed verdict, the burden is upon the state to disclose such evidence, if any. The state having failed to so do, since its asphyxiation theory has been thrown into the ash can by the prevailing opinion, this court, through its opinion, has taken up the laboring oar, and, therefore, it devolves upon the author of such opinion, in my opinion, to point out affirmatively that evidence which would be deemed in law substantial and satisfactory evidence to warrant the submission of the case to the jury.
Moreover, what possible application can § 3 of Article VII of the constitution have to the present dispute? The court has already set aside the verdict; therefore, there is no verdict to be supported by evidence. The sole question is whether there is sufficient evidence to justify another trial. To send the case back for retrial upon the evidence in this record would be merely to pass the buck to a jury to speculate upon how the death might have occurred. The majority suggests no answer to that question.
Some suggestion has been made, although not by the state, that the jury would have been warranted in finding that defendant could have moved the car manually. The evidence shows that, at the behest of Dr. Richardson, the sheriff, “a big strong husky fellow”, placed the gear shift in neutral, the brake being disengaged, and tried to shove the ear backward out *250of the garage. He was unable to do so. A movable jack was then procured, the car hoisted, and an attempt made to roll the car backward out into the street. This failed as the car slipped off the jack. If the sheriff-could not move the car backward manually, no human body intervening, and the garage door being open, it would be absurd to entertain the idea that defendant manually moved the car into the body of her husband against the garage door, exerting a pressure of from 500 to 600 pounds, and then manually moved the car forward to its original forward position.
I am not so sure that death occurred in the garage through the instrumentality of the automobile in question. Decedent, concededly drunk, could just as well have been struck on the outside of the garage, either by a car backing out of one of the adjoining garages or by a car traversing the thoroughfare. The deceased could then have been placed into the garage by the operator of the car involved. The blood spots on the bumper and on the garage door within the 13-inch space, and other evidences, could have been occasioned by the defendant’s dragging the body through that opening.
A person’s liberty, and perhaps life, should not hang on such flimsy circumstantial evidence. It has been well said that a chain is no stronger than its weakest link. Here the link is not only weak, but entirely missing.
Since the theory of motivation of the ear by battery has been withdrawn by the majority opinion; since defendant could not have driven the car by gas propulsion because of her inability to so do, and because of the absence of carbon monoxide in decedent’s body; and, since defendant could not manually move the car, where is there any evidence to connect defendant with *251the alleged crime ? I am firmly convinced that the jury had no substantial evidence to connect defendant with the alleged homicide.
Decedent’s death is a mystery, but that is no reason to plant the stigma of guilt on the defendant in the absence of substantial evidence of her guilt. I would reverse with directions to dismiss.
Mr. Justice Tooze authorizes me to say that he concurs in the foregoing opinion.