
    Joseph W. Fagan v. State of Nebraska.
    Filed January 31, 1920.
    No. 21067.
    Criminal Law: Evidence: Review. “Unless It appears that the evidence in the trial of a criminal case is so deficient that all reasonable minds, if uninfluenced by passion or prejudice, must agree that there is reasonable doubt of the guilt of the defendant, a reviewing court cannot sot aside the verdict of the jury as unsupported by the evidence.” Johnson v. State, 88 Neb. 328.
    Error to the district court for Fillmore county: Ralph. D. Brown, Judge.
    
      Reversed.
    
    
      John K. Waring, Robert B. Waring and H. G. Wellensielc, for plaintiff in error.
    
      Clarence A. Davis, Attorney General, and Cecil F. Laverty, contra.
    
   Cornish, J.

The defendant, Joseph W. Fagan (plaintiff in error), convicted of attempting to procure abortion, appeals.

The defendant contends, first of all, that the evidence is insufficient to sustain the verdict. Upon consideration of the evidence, we are of opinion that this objection to the verdict should he sustained.

Mrs. Saul (previously Grace Moore), upon whom the attempted abortion was made, if at all, was at the time an inmate of the Girls Industrial School. The defendant, a married man, was instructor of music and bandmaster at the same institution. She testified that, as a result of intercourse had with the defendant, she became pregnant ; that afterwards he procured and gave her certain drugs for the purpose of enabling her to accomplish an abortion; that the drugs, although taken by her, did not result in an abortion. The child was born some seven months later.

The evidence of Mrs. Saul is uncorroborated, except that her testimony that the matron of the school observed that she did not look well at about the time that she took the drugs, and advised, her to report to Doctor Bixby, is followed by the doctor’s testimony that she did report to him; that the matron told him that Mrs. Saul and others were complaining, and asked that he prescribe for Mrs. Saul. He did not testify that he found her ill.

Impeaching evidence sho.ws that her reputation for truth and veracity was not very good. Her testimony is contradicted in many particulars. She told two witnesses that she received the drugs from one Jack Williams, of Lamar, Colorado. She at first wrote a note, stating that no person at the school was responsible for her condition, and she told Doctor Bixby that she had gotten into trouble at Lincoln. Doctor Bixby, whom she visited, found no evidence of any effect of the drug upon her. The evidence indicated, not only that the drugs taken by her were harmless, but the doctor’s testimony is that the drugs could not have produced an abortion. After four months ’ pregnancy, she married her present husband, who was also employed at the school. She swears-at one time that she asked the defendant to get the drug; at another, that he got it on his own motion. She admits that she was jealous of him because of his paying attention to another woman. Her testimony as to time and place of intercourse is met with strong rebuttal testimony.

On the other hand, the defendant, on the witness-stand, denied ever having any improper or illicit relation with her. Aside from her testimony, there is no evidence in the record that defendant ever kept company with her or sought or had opportunities for' the two months’ illicit relations sworn to.

No doubt, if. defendant induced Mrs. Saul to take the drugs, believing that they would produce abortion, that would be sufficient, but she nowhere quotes defendant as saying that the drug handed her would do so. When the drug itself would be ineffectual for abortion, this circumstance has some significance.

We are of opinion that the evidence before us is not such as to justify the jury in finding beyond a reasonable doubt that the accused made the attempt charged against him.

Reversed and remanded.

Letton, J., not sitting.

Rose, J.,

dissenting.

My review of the record convinces me that the evidence establishes the guilt of defendant beyond a reasonable doubt and that there is no error in the record prejudicial to defendant. I, therefore, dissent from the opinion of the majority.  