dissenting.
The trial court instructed the jury that, “The law conclusively presumes a malicious and guilty intent from the deliberate commission of an unlawful act.”① The majority opinion holds that the giving of this instruction was reversible error. I disagree.
I shall assume that after State of Oregon v. Nodine, 198 Or 679, 259 P2d 1056 (1953) an instruction in terms of ORS 41.350 (2) would not be proper in a case in which the defendant is charged with manslaughter.② But I do not believe that defendant in the present ease was harmed by the instruction. The instruction, in effect, tells the jury that if one deliber*531ately commits an unlawful act lie is conclusively presumed to have a malicious and guilty intent. Applied to the facts of the present case the instruction would be translated by the members of the jury to mean that if they found that defendant deliberately committed the act made unlawful under ORS 163.060, they would be required to assume that he had the requisite criminal intent. It must be conceded that malice is not an essential element of the crime defined in ORS 163.060 and to this extent the instruction is abstract. But that fact does not prejudice defendant under the circumstances of this case.
The trial court clearly stated the elements of the crime which were necessary to make defendant’s conduct “unlawful.”③ These instructions made it clear that the jury could not find defendant guilty unless he acted with the intent to destroy the child and unless the operation was not necessary to preserve the mother’s life. Once the jury found these elements of the crime to exist defendant’s guilt would be established. The necessary criminal intent would flow from the proof of the elements listed in the statute. It is *532immaterial whether that intent is described to tbe jury as “malicious and guilty intent” or simply as a “guilty intent.”
Tbe other instructions informed tbe jury that “tbe law presumes tbe defendant is innocent” and that “it is necessary for tbe State to prove beyond a reasonable doubt each and every material allegation in tbe indictment, and tbe material elements constituting this crime” (setting them out as indicated in tbe margin at note 2).
The instruction which is tbe basis for reversal was a part of an extended explanation of presumptions and inferences.④ Tbe instruction, taken as a whole, was not unfavorable to defendant.
There was no reversible error. The judgment should be affirmed.
The instruction was a partial adoption of ORS 41.350 (2), which reads:
“The following presumptions, and no others, are conclusive:
sk * # *
“(2) A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another.”
Although State of Oregon v. Nodine, supra, involved an instruction based upon ORS 41.350 (1), the reasoning would seem to render improper the giving of an instruction in terms of ORS 41.350 (2) where manslaughter is charged. The instruction in the present case would, of course, be objectionable upon the further ground that it failed to fully state the presumption called for in ORS 41.350 (2) since it omitted the language “for the purpose of injuring another.”
The instruction on this point was as follows:
“The material allegations and elements in this case are these:
“First, that the defendant, ROSS HILLS ELLIOTT, did unlawfully and feloniously use and employ certain instruments in and upon the body and womb of the said Sharon Lee Schaub.
“Second, that Sharon Lee Schaub was at that time pregnant with child.
“Third, that the defendant, ROSS HILLS ELLIOTT, did at that time intend to destroy the said child.
“Fourth, that such operation was not necessary to preserve the life of the said Sharon Lee Schaub.
“Fifth, that the defendant, ROSS HILLS ELLIOTT, did by such actions, cause and produce the death of the said child.
“Sixth, that the crime, if any, was committed on the 14th day of September, 1961, and occurred or was triable within Multnomah County, Oregon.”
This aspect of the instructions was as follows:
“In establishing the degree of proof required, the State may rely upon either direct evidence, or indirect or circumstantial evidence. Direct evidence is that which proves a fact in dispute directly, without any inferences or presumptions, and which in itself, if true, conclusively establishes the fact. Indirect or circumstantial evidence is that which tends to establish a fact in dispute by proving another, and which though true, does not of itself conclusively establish the fact, but which affords an inference or presumption of its existence. An inference is a deduction which you, as members of the jury, make from the facts proved, without an express direction of law to that effect. A presumption is a deduction which the law expressly directs to be made from the particular facts. You are instructed that if, from a consideration of all the evidence in this case, the same is susceptible of two conclusions or two constructions, the one consistent with the guilt of the defendant, and the other consistent with his innocence, then you are to adopt that construction or conclusion which is the most consistent with his innocence. Circumstantial evidence to be successful for a conviction, must be of a conclusive nature, that is to say, those tendencies must be not only to convince the minds of the jury of the defendant’s guilt beyond a reasonable doubt, but to exclude the supposition of innocence. The law conclusively presumes a malicious and guilty intent from the deliberate commission of any unlawful act.”