dissenting.
I dissent from the result reached in the majority opinion. I am convinced that the judgment of conviction in this case should be reversed as to all defendants and remanded for a new trial.
For the purposes of this opinion, I am assuming that the majority’s interpretation and application of the doctrine of estoppel by judgment as it applies to the defendant Dewey is correct, although based upon the effect of OES 136.620 (1), a logical decision might be rendered to the contrary. Proceeding, however, upon the assumption stated, I shall direct my attention solely to the question of what the result should be in the light thereof. We must not overlook the fact that the rights of two other defendants are involved here, as well as the rights of the defendant Dewey. Those defendants, who have not been tried on the manslaughter charge, are in no way concerned here in the doctrine of res judicata.
It is conceded that upon the trial of the instant ease the state did not prove nor attempt to prove that an unlawful abortion was performed upon one Ila Cowles, as an essential element of the crime charged in the indictment. It is my opinion that this amounted to to a failure of proof as to a material allegation of the crime charged and, therefore, constituted a fatal variance.
It is specifically alleged in the indictment:
“* * * the said Dr. H. E. Dewey, Dr. Kenneth E. Dewey, Doris Hoffstra, Johanna Doe, whose true name is unknown, and Jane Doe, whose true name is unknown, did on the 25th day of June, 1951, in the said public place known as the Dewey Clinic in said county and state, wilfully and wrongfully commit and produce an abortion upon one Ila *524Cowles, she, the said Ila Cowles, then and there being a woman pregnant with child, and did then and there between the 30th day of April, 1951 and the 26th day of June, 1951, and ever since said time, wilfully and wrongfully commit and produce upon women then and there pregnant with child, the names and numbers of which women are to the Grand Jury unknown, abortions * * *.”
The majority states: “It was not necessary to prove the allegation of the indictment that the defendants performed an abortion on Ila Cowles.” In my opinion, that statement is in direct conflict with long established and, in fact, elementary rules of pleading and proof in criminal cases. And under those same elementary rules of pleading and proof, had the indictment specifically charged 10 or 100 particular abortions, as suggested in the majority opinion, the state would have been required to prove each and every one of them. The absurdity in the suggested situation does not lie in the requirement as to proof, but in the original insertion of the specific charges in the indictment. Such particularization is, of course, unnecessary to state fully a crime under the so-called nuisance statute, but if the state elects so to state its case, then it is bound to prove it as alleged.
To warrant a conviction in any criminal case, it is incumbent upon the state to establish by proof beyond reasonable doubt each and every essential element of the crime charged; if it fails to establish any one or more of such elements, it has failed to prove its case. The majority opinion is in agreement on this premise. Therefore, if the allegation respecting the abortion upon Ila Cowles is a material part of the crime charged in this case, then it is obvious that there has been a failure of proof.
*525ORS 161.310, under which statute the instant case is being prosecuted, provides:
“If no punishment is expressly prescribed for the act by the criminal statutes, any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, upon conviction, shall be punished by imprisonment in the county jail for not less than one month nor more than six months, or by fine not less than $50 nor more than $200.” (Italics mine.)
There is no statute of this state which specifically defines as a public nuisance or crime the acts alleged in the indictment in the instant case. ORS 161.310, supra, does not define any specific crime. It is sort of a catch-all statute, designed to cover all criminal acts not otherwise specifically defined and prohibited by law. It contains no standards nor yardsticks by which alleged wrongful acts are to be weighed, except the broad generalization: “any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals. ’? Therefore, in every prosecution under this statute, it is necessarily left to the grand jury or the district attorney to determine initially what particular act or combination of acts constitutes a public nuisance within the meaning of the law. The grand jury expresses its determination in an indictment; the district attorney, in an information or complaint. In its indictment, the grand jury portrays the conditions which it charges disturb the public peace or health and openly outrage the public decency and are injurious to the public morals. The particular act or combination of acts it *526charges in the indictment constitutes the particular public nuisance which the defendant must be prepared to defend against; it is the particular nuisance that must be proved by the state. In returning an indictment, it is exclusively the province of the grand jury to so describe the alleged nuisance. It cuts its cloth according to its own measurements; it builds the house, and the house must be maintained and sustained as erected. The fact that it might have alleged a public nuisance with less particularization, or by the omission of one or more of the particular acts charged, is wholly immaterial. The material thing is that it did incorporate the alleged acts in the indictment as a part of the nuisance it charged, and that is the alleged public nuisance before us for consideration, not something different.
If the allegation in the instant indictment concerning the alleged abortion upon Ila Cowles is not a material allegation, necessary to be proved, then it must-be immaterial and surplusage, and not an issue in the case. If it is not an issue in the case, then all the discussion found in the majority opinion concerning the doctrine of estoppel by judgment is unnecessary and may likewise be considered as surplusage. But, as I shall later point out, the allegation is not immaterial, nor may it be treated as surplusage; on the contrary, it is an essential element of the particular nuisance charged in the pending indictment, is a material issue in the case, and the state was required to prove it in order to justify a conviction. That the allegation is an essential element of the nuisance charged is established by our own decisions.
State v. Atwood, 54 Or 526, 102 P 295, 104 P 195, is the first of our decisions involving a situation similar to that in the case at bar. All our later decisions have *527been based upon and followed the Atwood ease, even as to the constitutionality of the nuisance statute itself.
The allegations of the instant indictment are the same as appear in the indictment in the Atwood case and also in the indictment in the later case of State v. Elliott, 206 Or 82, 277 P2d 754. Of course, names and dates are different, but otherwise the indictments are in the same form and language.
In the Atwood case the indictment charged:
“* * * and so having set up, furnished, equipped, kept and maintained the said house and place with the intent and purpose aforesaid, the said C.H.T. Atwood and C. H. Atwood, on the 4th day of September, 1908, in the said public house and place, known as the ‘maternity hospital’ aforesaid in the said county and state, did willfully and wrongfully commit and produce an abortion upon one Mahala Roberts, she, the said Mahala Roberts, then and there being a woman pregnant with child, and did then and there, between the said 1st day of January, 1908, and the said 1st day of November, 1908, willfully and wrongfully commit and produce upon women then and there pregnant with child, the names and numbers of which women are to the grand jury unknown, abortions, contrary to the statutes * * (Italics mine.)
But one question was directly raised by the assignments of error in the Atwood case; i.e., “ ‘that the indictment upon which defendants were arraigned and convicted does not state facts sufficient to constitute a misdemeanor or crime’ ”,
“defendants urging, first, that the acts were lawful acts, and were not exercised in such a manner as to openly outrage public decency, or be injurious to public morals; second, that the intent and purpose charged, unless followed by a public act, does not constitute a public nuisance; third, that no facts *528are alleged showing an unlawful abortion; fourth, that it is not unlawful to produce an unnecessary abortion, unless the woman is quick with child. Defendants’ counsel insists that the facts alleged do not constitute a crime, because it is not alleged that the abortions were committed upon women quick with child, contending that otherwise producing abortions is lawful. Much of his argument is based upon this assumption, and he assumes that a necessary element m a violation of Section 1748, B. & C. Comp., defining manslaughter by producing abortion, is that the woman be quick with child, and this view seems to be quite prevalent. This question has never been before this court for decision, and the writer of this opinion is not able to accept defendants’ view. It seems to be an unsettled question whether producing an abortion was an offense at common law, except when the mother was quick with child.”
The court then proceeded to discuss thorouarhlv the question of whether it was necessary to constitute the crime of manslaughter by abortion that the woman pregnant be quick with child. Deeming a determination of that particular question unnecessary to its decision in the case, the court continued with its discussion without deciding it. It then said:
“The indictment does not attempt to charge a violation of any statute in the procuring of abortions.”
Immediately following that statement, the court took up its discussion of the nuisance statute. ORS 161.310, supra. It then stated:
“And clearly the acts complained of in this indictment are injurious to public morals, and we conclude that such acts constitute a nuisance, although not performed in a public place, or may not disturb the peace or quiet of the community or public. They [the acts of abortion charged] do *529openly outrage public decency, and are injurious to public morals, and such is the effect of the acts charged, even though not done in a public place, or in view of the public.” (Italics mine.)
The foregoing statement shows conclusively that this court deemed the acts of abortion charged in the indictment to be the very essence of the public nuisance alleged.
After making the foregoing statement, the court said:
“It is not necessary to allege that the acts of defendants in producing abortions were done in cases where the operations or procurements were unnecessary. The offense relates to a business or condition. If we had a statute authorizing the procuring of abortions in certain cases, it might be necessary, in an indictment in such a ease as this, to negative such exceptions, but we have no such statute.” (Italics mine.)
Here the court again stressed the importance of the specific allegations as to abortions contained in the indictment.
Commencing at the bottom of page 535 of 54 Or, the court said further:
“The charge is that the house was maintained with the intent and purpose of willfully, wrongfully and unlawfully producing abortions. It was not the purpose of the indictment to charge that the intention of the defendants was to commit the crime of hilling by producing abortions under Section 1748, B. & C. Comp. [OBS 163.060—manslaughter statute], but that they were conducting a business that openly outraged the public decency and was injurious to public morals, and the business with which defendant are charged clearly comes within those terms.” (Italics mine.)
*530The business referred to was the business of actually performing unlawful abortions as alleged in the indictment.
After the foregoing discussion by the court, we then find the following clear, unequivocal, and positive-language in the opinion:
“The allegations of abortion upon Mahala Huberts [Ila Cowles] and other women do not state facts that constitute a crime under Section 1748, B. & C. Comp., and are not intended to, but are only allegations of acts done in the performance of the purpose and intent charged, which are necessary elements of the nuisances, and do not charge-separate offenses: State v. Waymire, 52 Or. 281 (97 Pac. 46).” (Italics mine.)
Could any statement be clearer or more positive? The court emphatically stated that the allegation respecting the abortion upon Mahala Roberts is “a necessary element of the nuisance” charged, as well as the allegation about the performance of abortions upon other women.
The majority meets this positive declaration of the law with the following statement:
“In State v. Atwood, supra, which is cited as a contrary decision, the only question was whether the indictment stated facts sufficient to constitute a crime. 54 Or at p 529. There was no question of sufficiency of the proof. * * * The court was not called upon to decide whether a failure to prove the specific abortion alleged would amount to a failure of proof even though there was substantial evidence that abortions were actually performed by the defendants in the place described and that the house was maintained for that purpose. No such question was presented. The decision, therefore, is not a controlling precedent here. ’ ’
*531From what I have quoted from the Atwood opinion above, it is obvious that in that case the court was considering the exact question now before us. In the Atwood case the court was called upon to determine just what constituted the crime alleged in the indictment, and it said directly that the allegations respecting the unlawful abortions were “necessary elements” of the particular nuisance charged. Is that not precisely the same question now before this court?
Moreover, the decision does stand for the proposition that it was essential for the state to prove the unlawful abortions as alleged. When the court said that the alleged abortions were “necessary elements” of the crime charged, that was tantamount to saying that they must be proved. Upon this proposition, the crime involved in this case is no different from any other crime. It is elementary that in every criminal case the essential or necessary elements of the crime alleged must be proved or there can be no lawful conviction. The requirement as to proof arises as the necessary result of the language used by the court.
Furthermore, as I shall later point out, the decision in the Atwood ease upon the question now under discussion is strictly in keeping with fundamental rules governing pleading and proof in criminal actions.
In State v. Waymire, 52 Or 281, 286, 97 P 46, there was involved a prosecution under the nuisance statute. The indictment is rather lengthy and charges a conspiracy, together with specific acts in furtherance thereof, to injure the good name and reputation of the then mayor of the city of Portland. As one of the acts alleged, the indictment charged:
“ * * * the said E. E. Padding, in pursuance of the said conspiracy * * * did then and there, upon hearing the said outcry of the said Belle Way-*532mire, break and shatter the door of the said Harry Lane’s office in said building * * *
Referring to this allegation of the indictment, the court, speaking through Chief Justice Robert S. Bean, said:
“It is claimed that the indictment charges more than one crime, because it alleges that the defendant Radding broke and shattered a door of the prosecuting witness’ office; but this was merely an act committed in pursuance to the general purpose of the conspiracy and in furtherance thereof, constituting a part of the crime charged, and not an independent one.” (Italics ours.)
The majority gives no satisfactory explanation as to its claim that the above language is not applicable to the instant case. It contents itself with the statement: “But in this respect the case at bar is entirely different, and, had there been no evidence at all about Ila Cowles, there still would have been sufficient evidence of the offense charged.” (Italics mine.) That begs the question. As a reason for not applying the rule in the Waymire case, it simply gives its own ultimate conclusion in this case upon the matter in dispute.
The charge in the instant indictment that an abortion was performed upon Ila Cowles (in the Atwood case, upon Mahala Roberts), was not a charge of an independent crime, but simply “constituted a part of the crime charged.” Upon this proposition there is no difference whatever between the matter under discussion in the Waymire case and that now under discussion here, and that is why in the Atwood case this court cited the Waymire decision in support of the statement above quoted.
Chief Justice Robert S. Bean was not given to the use of loose language. He was noted for his clear and concise statements upon matters of law. In every *533case he meant precisely what his. words implied. In the long line of distinguished jurists who occupied this bench in former years, Justice Bean occupied the foremost position. That is the concensus of opinion of the bench and bar of this state. When he said the specific act alleged constituted a part of the crime charged, that is, a part of the nuisance charged, he meant just that. Being a part of the crime charged, it must necessarily be proved to sustain a conviction.
Beliance is placed by the majority upon our latest decision in State v. Elliott, supra. It quotes the following therefrom:
“* * * the gravamen of the charge in the indictment is unlawfully keeping and maintaining a public place for the purpose of producing illegal abortions, which act grossly disturbed the public peace and health and openly outraged public decency, being injurious to public morals. The allegations in the indictment respecting conspiracy, abortions, etc., were merely elements, incidents, means or circumstances by which the substantive crime was committed and not the substantive crime itself.” (Italics mine.)
To support the foregoing statement, the court cited State v. Atwood, supra, and quoted therefrom that portion of the decision which I have above quoted, respecting the proposition that the acts of abortion charged were “necessary elements” of the nuisance.
The above statement of the court in the Elliott case was made in reply to defendant’s contention that the indictment should fail because it charged the crimes of conspiracy to commit a felony, manslaughter by abortion, and an attempt to commit a crime and an assault, for all of which punishment is expressly prescribed by the code. The Atwood decision is the only one referred to in support of the court’s statement.
*534No new law was announced in the Elliott case. The gravamen of the charge in both the Waymire and Atwood cases, as in the Elliott case, was the alleged nuisance. The same is true in this case. And here, as in the other cases, the independent acts charged (the abortions performed) did not charge separate crimes, but simply constituted “a part of the crime charged [public nuisance]” and “are necessary elements” thereof. State v. Atwood, supra.
It is manifest that if the present opinion of the majority is to be upheld upon the question under discussion, it can be legitimately done only by expressly overruling the Waymire, Atwood, and Elliott cases.
Attention will now be directed to some of the authorities cited and relied upon by the majority, the decisions being by courts in other jurisdictions.
People v. Hoffman, 103 NYS 1000, aff. 189 NY 561, 82 NE 1130, is cited and quoted from as follows:
“The offense of abortion is one thing. That of maintaining premises open to the public for the purpose of consummating that crime is another and separate offense against the peace and good order of the state.”
That is precisely what we have said, using somewhat different language to express ourselves, in the Atwood and Elliott cases.
Among other things, the indictment in the Hoffman ease charged defendant as follows:
“* * * that she received into the house above indicated a large number of women who were with child, and that she used instruments in producing abortions.”
The opinion states that there was evidence to support this allegation. It in no way suggests that such evidence was unnecessary.
*535People v. Curtis, 136 NYS 582, aff. 206 NY 747, 100 NE 1131, is also cited by the majority. In that case the defendants were charged with the maintenance of a building for the purpose of committing and performing unlawful abortions therein. As a part of the crime charged, the indictment alleged:
“* * in that they kept and maintained the building for the unlawful purpose of committing and performing therein unlawful abortions; that such abortions were performed therein * * V’
(Italics mine.)
The defendant contended that the case was absolutely barren of any evidence that any act of unlawful abortion was ever committed at this place or that any pregnant women ever resorted to this place for that purpose.
The court answered this contention by pointing out facts and circumstances in evidence by which the allegation concerning abortions might be deemed proved. This discussion by the court indicates very clearly that it deemed the evidence necessary and material. The court found sufficient evidence to sustain the conviction for the crime as alleged.
The majority cites and comments upon the case of Dennis v. State, 91 Ind 291. In my opinion, that Indiana decision is directly opposed to the position assumed by the majority upon the question under discussion. In that case it was charged in the affidavit and information “that the defendants at * * *, on * * *, and near the dwelling houses of Joseph Loehr, Noble Warrum and Rufus Scott, and divers other citizens, * * * unlawfully maintained * * * a slaughter-house * * * to- the injury of Joseph Loehr, Noble Warrum and Rufus Scott, and divers other citizens being, pass*536ing and residing near their slaughter-house * # *.” In its instructions to the jury the trial court referred to “the health, comfort or property of the said Noble Warrum or Rufus Scott,” failing entirely to mention Joseph Loehr. The defendants contended that “the allegations in the affidavit and information, in regard to the location of the slaughter-house near the residences of Loehr, Warrum and Scott, and that the nuisance described was to the injury of Loehr, Warrum and Scott, were matters of description and must be proved as charged; and that, therefore, it was error in the court to instruct the jury * * * that as to these allegations the State would be entitled to a conviction, if the evidence showed * * * the location of the slaughter-house near the residences of two of the three persons named, and that the nuisance charged was injurious * * * to two of the three persons mentioned in the affidavit and information.” (Italics mine.) In reply to this contention, the Indiana court said:
“If counsel are correct in their position that the allegations referred to are matters of description, then, although they were made unnecessarily, they must be proved as made, before the State could be entitled to a conviction.” (Italics mine.)
The court held that the specific naming of the three persons mentioned was an unnecessary allegation, but having been so alleged and being a matter of description, it had to be proved; and unless proved, the “variance will be fatal.” Because of the omission of Loehr’s name in the instructions, although the other two individuals were mentioned, error was found, the judgment was reversed, and the cause remanded for a new trial.
*537The majority cites and quotes from 2 Wharton, Criminal Evidence 11th ed 1911, § 1090, as follows:
“Where there is an allegation which describes, defines, qualifies, or limits a matter material to be charged, it is taken as a descriptive averment, and the general rule obtains that it must be proved as laid, even though such particularity of description is unnecessary.” (Italics mine.)
Clearly that statement does not support the position of the majority in this case. As I shall later point out, the allegation as to the abortion upon Ila Cowles is not only a necessary element of the crime charged (State v. Atwood, supra), but it also is highly descriptive of the unlawful business in which defendants engaged.
I have no quarrel with the rules stated in Wharton on Criminal Evidence referred to in the majority opinion. In fact, I think they sustain the position which I am taking in this case. However, I do wish to direct attention to what I deem an error in a statement made by the majority. In discussing Wharton on Criminal Evidence the majority states:
“* * * Among other cases cited by the author are several where money alleged to have been stolen was unnecessarily described as ‘money of the U.S.’, and, the proof failing in this particular, the conviction was reversed. * * * A similar question was involved in State v. Neilon, 43 Or 168, 174, 73 P 321, though the court found it unnecessary to decide it.” (Italics mine.)
In my opinion, this court did decide that question and held that in the absence of evidence tending to prove such “unnecessary allegation” the defendant should have been acquitted. The court said:
‘ ‘ The information charges that the money which it is alleged the defendant converted to his own use and failed to pay over was lawful money of the *538United States, and it is argned that, while it was not necessary for the state to have alleged that fact, it must be proved as alleged. It has been held that, under an indictment charging larceny of lawful money of the United States, it is incumbent upon the prosecution to prove that the money stolen was of the kind and character described in the indictment : [citing cases]. Within this rule the defendant should have been acquitted unless the evidence tended to show, either directly or by inference, that the money embezzled by him was lawful money of the United States.” (Italics mine.)
The court then proceeded to point out the evidence in the record from which the fact of the money involved being lawful money of the United States might be found.
The quotation from Bishop’s New Criminal Procedure appearing in the majority opinion is direct authority for the proposition that the allegation in the instant indictment respecting the alleged abortion on Ila Cowles must be proved, or there will be a fatal variance, even though the allegation might be deemed an unnecessary one. An allegation in an indictment may be unnecessary to state a complete crime, but that does not ipso facto render the allegation surplusage. The majority replies to Mr. Bishop with this statement:
* * The nuisance consisted of setting up and maintaining a place, specifically designated, together with the necessary equipment, for the performing of abortions and the actual performmg of abortions in that place. All these things were amply proved.” (Italics mine.)
That is what the majority says the charged nuisance consisted of in this case, but that is not what the grand jury said in its indictment. It is only a part of what it said. In this respect, who is authorized to speak, *539this court, or the grand jury? The nuisance that the grand jury described charged, among other things, a specific abortion upon Ila Cowles as a part of the crime. It is frankly conceded that there is evidence in this record from which it might be inferred that abortions upon other women, names unknown, may have been performed by defendants in the conduct of their business. But that evidence satisfies only one of the allegations of the indictment; it has nothing whatever to do with the question whether such an abortion had been performed upon Ila Cowles.
The majority makes the following statement:
“There are numerous classes of cases in which it is held that failure to prove all that is alleged in the indictment will not stand in the way of a conviction.”
The majority then invites attention to indictments for conspiracies where overt acts are alleged in pursuance thereof, to indictments for contributing to the delinquency of a minor, and to prosecutions for obtaining money or property by .false pretenses. It might have added indictments for negligent homicide. However, the rules announced in those cases have no application whatever to a prosecution under our nuisance statute where the grand jury or the district attorney must, of necessity, define the particular crime involved by the allegations of the indictment, complaint, or information.
For example, negligent homicide is defined in this state by ORS 163.090, as follows:
“When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any motor vehicle in a negligent manner * * *, the person so driving such vehicle * * * is guilty of negligent homicide * * *.”
*540The gist of this crime is the negligent killing of another in the operation of a motor vehicle. When one or more acts of negligence alleged are established by the evidence as the proximate canse, the crime is complete. It takes bnt one negligent act, if it be the proximate cause, to constitute the crime; but just as it is in civil actions for damages based upon negligence, several acts may be alleged, and the proof of one or more is sufficient.
That also is true in cases charging an act or acts contributing to the delinquency of a minor. The gist of that crime is the delinquency of a minor and contributing thereto. Such may be accomplished by one act or many acts. If one act is proved that accomplished the result, that is sufficient. State v. Moore, 194 Or 232, 239, 241 P2d 455.
I find nothing whatever in the case of People v. Haynes, 11 Wend 557 (NY), quoted from by the majority, that supports its conclusion in this case. In that case the principal question for determination was whether in a prosecution for obtaining property by false pretenses (a specific crime defined specifically by statute), it was necessary for the state to prove all the false pretenses alleged in the indictment to warrant a conviction. The court quite properly held that it was not necessary, as proof of one or more of such false pretenses would be sufficient to establish the complete crime. The court said:
1‘ The statute extends to every case where a party has obtained money or goods by falsely representing himself to be in a situation in which he is not, or by falsely representing any occurrance that had not happened, to which persons of ordinary caution might give credit. The ingredients of the of-fence are obtaining goods by false pretences, and with intent to defraud.” (Italics mine.)
*541The ingredients of the offense involved in the New York case are specified in the statute; the ingredients of the particular offense charged in this case are not found in any statute, but are found only in the indictment.
The majority quotes a statement from People v. Townsend, 3 Hill 479 (NY), which, at first blush, would seem to support its position in this case. However, immediately following the statement of the New York court quoted in the majority opinion, is to be found the following:
“But it is not allowable to depart entirely from the averments, and I think the court should have instructed the jury that before they could find the defendants guilty, they must believe that the injury arose in the particular manner mentioned in the indictment. As the dam was not in itself a nuisance, the way it became offensive constituted a part of the substance of the issue, and the substance of the issue must always b e proved. ’ ’ (Italics mine.)
Judge Bronson, who wrote the opinion of the court, after making the statements quoted in the majority opinion and in this opinion, said further:
“* * * But here, as the act of the party, to wit, erecting and maintaining the dam, was in itself lawful, the way or manner in which the dam had become a nuisance was a material fact, which should have been proved as laid. If such be not the rule, the defendant can never know what kind of evidence he must be prepared to meet on the trial. Such are my views of this question; but my brethren are of the opinion that the substance of the issue was proved.”
The court was comprised of three members, and evidently two of them were of the opinion that the substance of the issue had been proved, although Judge Bronson was not.
*542To understand the decision, it is necessary that the issues in the case be known. Defendants were charged in the indictment with maintaining a dam across Onondaga creek, by which water flowing in the stream was dammned up, and flowed back in and up the channel of the stream and over the surface of large tracts of adjoining land, “by means whereof the mud, wood, leaves, brush, and the animal and vegetable substances and other filth collected and brought down by the channel of the said water course and by the natural flowing of the waters, there became and were, during all the time aforesaid, collected and accumulated in large quantities in the channel of the water course and on the lands overflowed; and that said mud, wood, etc., so there collected * * * became and were and still are very offensive and nauseous, and the waters became and are corrupted; and by means thereof divers noisome, unwholesome and deleterious smells and stenches did arise * * * so that the air was and still is corrupted and infected * * V’
Defendants moved for a directed verdict of not guilty, which motion was denied. They then requested three instructions. The first two requests, relating to the responsibility for the dam by parties defendant and to former jeopardy, were denied, but the third was given. The third only is material to this discussion. The trial court instructed the jury as requested as follows:
“Third, the indictment charges the nuisance to consist in erecting and continuing the dam, whereby the mud, wood, etc. collected cmd brought down the channel were collected and accumulated in the channel and on the land overflowed, and became offensive, etc.; and the prosecution must make out the case as stated. The defendants could not be convicted unless the jury believed from the evidence *543that the nuisance arose from the decomposition of matter brought down the channel, and not from the decomposition of vegetable matter growing in or about the pond.”
The judgment of conviction was reversed because the defendants were not shown to be the authors of the nuisance, one of the two grounds defendants had urged upon their motion for a directed verdict, and in their requested instructions. But the court did not criticise the instruction given as above quoted. From that instruction, it is clear that the trial court stated to the jury that the prosecution was required to “make out the case as stated” in the indictment, and to prove that the nuisance arose in the manner alleged.
Moreover, inasmuch as the case was decided upon the proposition that defendants were not responsible for the nuisance, whatever it consisted of, all the discussion quoted in the majority opinion in this case and in this opinion was dicta unnecessary to the decision, and evidently expressed the views of Judge Bronson only.
The majority cites and quotes from the decision in State v. Beal, 94 Me 520, and then states: “We think that the foregoing is ample authority for our decision.” In my opinion, it is no authority at all in support of the position taken by the majority. The indictment in the Maine case and that in the instant case have nothing whatever in common, except that both indictments charge a public nuisance. In the Maine case the indictment charged as a public nuisance the location of a particular structure in a public street, describing the size of the building in detail. The evidence showed that a part of the building so described was not located in the street, although a large portion thereof was. Naturally, if any part of the structure encroached upon *544the public street, a nuisance existed. That is what the Maine court held. That it did not intend by its decision to upset elementary rules as to pleading and proof in criminal cases is demonstrated conclusively by what it said immediately prior to making the comments it did as quoted by the majority. The Maine court said:
“It is undoubtedly true, that when a person or thing necessary to be mentioned in an indictment is described with even unnecessary particularity, all the circumstances of the description must be proved; for they are all made essential to the identity, 1 G-reenleaf on Evidence, § 65; and a variance in proof of particulars is fatal, for proof of identity may depend upon preciseness of description. State v. Noble, 15 Me. 476.” (Italics mine.)
No doubt the majority is relying upon that portion of its quote from the Maine decision reading as follows:
“* * * does the failure to prove the allegation of an offense to the extent charged result in a fatal variance between allegation and proof. We think not necessarily. It is laid down by Mr. Wharton in his work on Criminal Evidence, § 145, that failure to prove allegations of number, quantity and magnitude in their entirety is not a fatal variance, where the proof pro tanto supports the charge.” (Italics mine.)
The Maine court is speaking of a situation entirely different from that present in the case at bar. It is speaking of the substance of the crime itself—the encroachment of the building upon the public street; it is not speaking of matters descriptive of the substantive thing. Its remarks have reference entirely to the extent or magnitude of the unlawful encroachment, in a case where any encroachment whatever upon the street constituted a public nuisance, and upon proof of which the crime as alleged was complete. That is the basis of its holding.
*545In construing the indictment in the Atwood case, had this court simply said that “the actual performance of abortions is a necessary element of the nuisance charged,” there might have been some merit in the claim that the requirement as to proof would be satisfied by proving that abortions generally had been performed, without any proof as to a specific abortion. But that is not what the Atwood case held. Referring specifically to the alleged abortion on Mahala Roberts, and also to the alleged abortions on other women, the court said that those allegations (using the plural) “are necessary elements” (again using the plural) of the particular nuisances charged, ‘ ‘ and do not charge separate offenses” (and again using the plural). In other words, the public nuisance as charged by the grand jury, consisted in part of the specific abortions alleged; they were necessary elements of that particular nuisance.
The error in the majority’s statment that the Maine decision supports its position is shown by reference to a Massachusetts case: Commonwealth v. Wellington, 7 Allen 299.
In the Wellington case the indictment charged the wrongful desecration and disfigurement of a public burying ground in Swanzey, which public burying ground was particularly described by metes and bounds, by erecting a shed and maintaining a pen for hogs thereon. The substance of the crime (public nuisance) charged was “the desecration and disfigurement of a public burying ground, by erecting a shed and maintaining a pen for hogs thereon.” The evidence on the trial showed that a part only of the land specifically described as the burying ground by a metes and bounds description had actually been used as a public burying ground, but it also showed that the *546wrongful acts complained of were committed upon that part so used.
The defendant contended that the evidence failed to show that the whole of the lot (as described by metes and bounds in the indictment) had ever been used, occupied or appropriated as a burying ground, and, therefore, there was a fatal variance between the fact proved and the allegation in the indictment. The trial court instructed the jury that it was sufficient to warrant a conviction, if the evidence established that the lot of land described in the indictment or some portion of it was a public burying ground, and that the defendant did within such public burying ground the acts imputed to him. The Massachusetts court said:
“In the application of the general rule that it is .sufficient if the substance of the issue be proved, there is a distinction between allegations of matters of substcmce and allegations of matters of essential description. The former [matters of substance] may be substantially proved; but the latter [matters of description] must be proved strictly and with precision and exactness. Whenever a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved; for they are essential to its identity. Thus, in an indictment for stealing a black horse, the animal is necessarily mentioned, but the color need not be stated: yet if stated, it is made descriptive of the particular animal stolen, and a variance in the proof of the color is fatal. 1 G-reenl. Ev. §§56,65. * # *
“It was of course absolutely necessary that the indictment should mention the burying ground [as it was absolutely necessary in the instant case for the indictment to mention the unlawful business in which defendants were engaged, that business being the public nuisance charged], for the offence *547charged against defendant consisted in its desecration; but it was not essential that it should be described by metes and bounds. But it having been so described, and it being impossible to strike out the whole averment without taking from the indictment the part essential to the allegation of the offence intended to be charged, it was necessary that the whole description should be proved exactly as it was set forth. The instructions of the court that the whole need not be proved, but that the defendant might be convicted if it was shown that a part of the lot of land described in the indictment as a burying ground had been used and occupied for that purpose, and that the acts imputed to him had been done by him in that part of the lot, were therefore incorrect, and the exceptions thereto must be sustained. ’ ’ (Italics mine.)
In the instant case the substance of the crime charged is the unlawful business in which defendants were engaged, necessary, of course, to be mentioned in the indictment. It is patent, therefore, that the independent acts of abortion charged in the instant indictment, being at least directly descriptive of the substance of the nuisance alleged, must be proved exactly as set forth, even if this court is now unwilling to follow the Atwood case and treat them as necessary elements of the crime charged, and which, as such, would have to be proved.
I wish to invite attention now to some authorities not mentioned or considered by the majority, but which announce definitely the rules as to pleading and proof involved in the instant litigation.
In 14 Ency. of Pleading & Practice 1096, Nuisances § 112, it is said:
“An indictment for the erection or maintenance of a public nuisance should describe the alleged nuisance with certainty, and set forth sufficient facts *548to make out a prima facie case against the defendant. * * *
“The acts constituting the nuisance should be set out with the detail and fulness usual in indictments.
“And where a thing is not a nuisance in itself, but becomes so by reason of special circumstances, the special circumstances must be alleged.
“Matters of description, though unnecessarily alleged, must be proved as charged.” (Last italics mine.)
In Clark’s Criminal Procedure (Hornbook Series) 214, § 79, it is stated:
“No allegation [in an indictment], though it may have been unnecessary, can be rejected as surplusage, if it is descriptive of the identity of that which is legally essential to the charge.”
In Commonwealth v. Dejardin, 126 Mass 46, 30 AR 646, defendant .was charged in the indictment with printing and publishing obscene pictures of naked girls. The proof showed that he printed and published obscene picture of girls naked only above the waist. The court said :
“The allegation that the defendant printed and published pictures and figures of naked girls is not met by proof that he printed and published pictures and figures of girls, for the greater part clothed. The government, having described the pictures, is bound by the description, and the defendant could not be convicted upon proof that he printed and published pictures substantially different from the description, though the jury might find such pictures to be obscene. ’ ’ (Italics mine.)
The rule that descriptive matter in an indictment, although unnecessarily alleged, must be proved as alleged, is a fundamental rule applicable not only in nuisance eases, but also in all other criminal cases. I cite the following cases which illustrate the application of *549the rule: Trice v. State, 116 Ga 602, 42 SE 1008; State v. Sherburne, 59 NH 99; State v. Noble, 15 Me 476; State v. Langley, 34 NH 529; Alkenbrack v. People, 1 Denio 80 (NY); Gray v. State, 11 Tex Ct of App 411.
In 46 C J 820, Nuisances § 488, it is stated:
“On the trial the proof must accord with the charges of the indictment, information, or complaint, and the issues in the case, and a material variance between the allegations and the proof adduced in support thereof is fatal.” (Italics mine.)
Could it logically be contended that the fact of an abortion upon Ila Cowles was not a charge of the indictment and an issue in this case, a very material issue ? Did defendants’ pleas of not guilty place that question in issue as a fact? Were defendants required to defend against that specific charge as a part of the nuisance alleged? Or could defendants have ignored the specific charge as surplusage and immaterial? Could it have been stricken upon motion of defendants as being immaterial and surplusage? As the much-beloved Justice Belt was so often wont to say: “the answers to these questions are obvious.”
In a prosecution for maintaining a public nuisance it is unnecessary to state in the indictment the particular location of the nuisance other than county and state, yet if the particular location is alleged, it must be proved to avoid a fatal variance. The rule is stated in 20 RCL 486, Nuisances § 99, as follows:
“It is unnecessary, in a prosecution for keeping and maintaining a common nuisance, that the indictment or information particularly designate the place of the commission of the crime more than to charge that the same was committed within the county and state wherein the prosecution is had; but where the information designates the particular location of the place charged to be kept and main*550tained as a common nuisance, the state, to warrant conviction, must prove the crime to have been committed at the place so particularly described in the information, as proof of the commission of the crime of keeping and maintaining a common nuisance at a place other than that so designated with particularity in the information is proof of the commission of a separate independent crime other than the one charged in the information. ’ ’ (Italics mine.)
As noted in the majority opinion, Mr. Wharton states the same rule. The rule is elementary that “where there is an allegation which describes, defines, qualifies, or limits a matter material to be charged, it is taken as a descriptive averment” and must be proved as laid, even though such particularity of description is unnecessary.
In 42 CJS 1267, Indictments and Information § 250, the following rule is stated:
“ * * However, where an allegation is descriptive of the identity of that which is essential to the charge in the indictment, whether it be necessary or unnecessary or more or less particular, such allegation cannot be rejected as surplusage and must be proved * *
In Hightower v. State, 39 Gra App 674, 148 SE 300, it is said:
‘ ‘ If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other. ’ ’
It must be kept in mind that the defendants are charged by the indictment in this case with conducting an unlawful business, the business of performing il*551legal abortions; it is alleged that their place of business is maintained and operated for that purpose. That is the nuisance charged. Would anyone contend that the charge as to the specific abortion upon Ila Cowles is not descriptive of the business conducted by defendants; of their plans and operations which constituted the public nuisance charged by the grand jury in the indictment? Being a specific charge, it certainly is more descriptive of the nuisance alleged than the general charge of abortions upon other women, or the particular place where the business was carried on, but all must be proved.
In Fulk v. State, 19 Ind App 356, the affidavit charged a public nuisance in conducting a flour mill in a populous portion of the city, and alleged that defendant erected and maintained a smokestack of insufficient height to carry away the soot and smoke. The court held that although it was unnecessary to allege the matters concerning the smokestack, nevertheless, the same having been alleged, it was necessary for the state to prove it. There being a total failure of proof as to that allegation, as there is a total failure of proof in this case as to the abortion on Ila Cowles, the Indiana court reversed the conviction.
In 66 CJS 970, Nuisances § 166a, the following rules are announced:
“In a prosecution for maintaining a nuisance the prosecution must prove all the elements of the offense, and introduce evidence to support all averments of the indictment or information, even though such averments are not material, or not necessary to the sufficiency of the indictment; but the proof need not go beyond the indictment.’ ’ (Italics mine.)
In 39 Am Jur 452, Nuisances § 181, it is stated:
“In conformity to the rules applicable to criminal pleadings generally, an indictment, * * * for *552creating or maintaining a public nuisance must allege all facts necessary to show the commission of the offense, and must not charge more than one offense.”
In support of this statement and in the note thereto, the following comment is made respecting our decision in State v. Atwood, supra:
“Where an indictment for maintaining a nuisance by keeping a maternity hospital for abortions charges in connection therewith that the defendants, in such place and on a specified date, ‘did wilfully and wrongfully commit and produce an abortion upon one M.E., she the said M. E. then and there being a woman pregnant with child/ and that between certain dates they also did wilfully and wrongfully commit and produce abortions ‘upon women then and there pregnant with child, the names and numbers of which women are to the grand jury unknown/ the charges of particular abortions are not statements of fact constituting a crime under a statute relating to manslaughter in committing abortions, but are only allegations of acts done in maintaining the nuisance and are necessary elements thereof. Consequently, such indictment does not charge separate offenses. State v. Atwood, 54 Or 526, 102 P 295, 104 P 195, 21 Ann Cas 516.” (Italics mine.)
From the above, it is observed that the author placed the same construction upon the language used in the Atwood case as has heretofore been expressed in this opinion; that is, that the allegations as to the abortions performed, including that on Mahala Roberts, “are necessary elements” of the nuisance charged. Being necessary elements, they must be proved. Further, if considered only as being descriptive of the unlawful business in which defendants were engaged and charged to constitute a public nuisance, they must be proved as alleged,
*553However, it is highly significant that in all onr own cases as well as in the New York cases, snpra, the indictments contained allegations that unlawful abortions were actually performed as a part of the nuisance charged. By necessary inference to be drawn from the language used in the New York decisions, and by direct and positive holding of our own court, both jurisdictions stand for the proposition that the actual performance of unlawful abortions is a necessary element of the particular nuisance charged. It is manifest that this necessary element may be alleged generally as it was alleged in the New York cases, or generally and particularly as it was alleged in the instant indictment (and in all other indictments in this state), but when alleged, either generally or particularly, or both generally and particularly, it is elementary that it must be proved as alleged. The majority has not cited, nor have I been able to find, any authority whatever to the contrary.
The holding of this court in the Atwood ease that the actual performance of unlawful abortions is a necessary element of the nuisance charged is not without sound reason. Lawful abortions may be performed in this state when necessary to preserve the life of the mother (OHS 163.060, manslaughter), or when, in pursuance to the provisions of the Medical Practice Act (OBS 677.010-677.260), it is necessary to preserve her health. State v. Buck, 200 Or 87, 262 P2d 495. Suppose that a reputable physician specialized in performing such lawful abortions and maintained an office solely for that purpose. Would anyone contend that he was conducting or maintaining a public nuisance % Certainly not! It is the unlawful character of the abortion performed that makes the place a public nuisance, that shocks the public’s sense of decency and morality, and *554it is because of that that the unlawful abortions alleged are necessary elements of the particular nuisance charged.
The issue under discussion deals with fundamental rules of pleading and proof in criminal cases. I think that in its decision, the majority is turning its back on elementary principles. If this case only were affected by its holding, that would be bad enough, but, of course, that is not the extent of the damage being done. This holding today upon the question of pleading and proof will, like Banquo’s ghost, arise to haunt us in future criminal cases. Not one authority is cited in the majority opinion which directly supports its position that it was unnecessary in this case to prove the specific charge that an unlawful abortion was performed upon Ila Cowles. In my opinion, upon the law applicable to pleading and proof in criminal cases, the majority in this case stands alone. A new precedent is being established, entirely foreign to anything that has been said before.
It is unfortunate that the matter in dispute arises in a case of this character. All good citizens condemn the abortion racket. It long has been a foul stench in the nostrils of the body politic. Its complete eradication is demanded by every sense of morality and decency. However, it must be eradicated in keeping with the rules of law. Ours is a government by law, and it is the primary function of the court to see that the law is followed, even though in its application a guilty one may occasionally escape punishment. We cannot make or change the law to fit each individual case as it arises. If we did, we soon would have chaos instead of an orderly administration of justice. Bad cases make bad laws, and as Burke said: “Bad laws are the worst sort of tyranny.” Begardless of how we may feel as to *555the ultimate guilt of defendants in this case? our duty as an appellate tribunal concerned only with matters of law is plain. In the opinion of the majority, the state should have been permitted to prove the alleged abortion on Ila Cowles; in my opinion, it was required to do so. The judgment against all defendants should be reversed and the cause remanded for a new trial.
Latourette, J., authorizes me to say that he joins in this dissenting opinion.