
    (March 11, 1913.)
    STATE, Respondent, v. JOHN SAYER, Appellant.
    [130 Pac. 158.]
    Insufficiency of Evidence.
    1. Transcript of the 'evidence examined in this case, and held, that there is no evidence upon which to rest a verdict and judgment of conviction.
    APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.
    Prosecution on information for the crime of abortion. From a judgment of conviction defendant appealed.
    
      Reversed.
    
    Claude W. Gibson, for Appellant.
    Evidence of illicit relations is admissible for the purpose of proving the necessary element of pregnancy, or perhaps to show motive, but it is not admissible to prove the main fact of abortion. (People v. Josselyn, 39 Cal. 393, 397.)
    J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, and J. E. Good, County Attorney, for the State, cite no authorities.
   AILSHIE, C. J.

— In this case it is insisted by counsel for the appellant that there is absolutely no evidence whatever establishing the guilt of the appellant, and that the jury had before them no evidence upon which to rest a verdict. At the oral argument, the assistant attorney general stated that he had been unable to find any evidence in the record which justified a verdict and judgment of conviction. The attorney general’s office has furnished us with a digest of all the evidence in the ease, and cited us to everything that could be considered as a circumstance or suspicion against the defendant. After examining this as well as the transcript of the evidence, we are still left to wonder upon what grounds the jury returned a verdict of guilty. There is certainly no evidence justifying it in this record. In the meanwhile, it appears that defendant has served well-nigh a year in the penitentiary.

The judgment is reversed and the defendant will be discharged.

Sullivan and Stewart, JJ., concur.  