¶1(concurring specially). I concur in the affirmance, but dissent from that portion of the opinion to which ¶ 12 of the syllabus refers.
¶2On Rehearing.
¶3Hpon a rehearing and upon examining the judgment roll, we discover that although there is a statement that the trial court at no time extended the time for filing exceptions to the charge, the court did in fact and as a matter of law extend such time. The certificate of the court, which is attached to the roll, states among other *378things that the trial judge certifies that: “The within and foregoing is a true and correct statement of the case, and contains the proceedings heard in the said trial and the exceptions of the defendant and his bill of particulars and specifications of error. Now, therefore, it is hereby ordered that the within and foregoing statement of the defendant, together with the proposed amendment of the plaintiff, state of North Dakota, that the same is correct and be allowed as and for the statement of the case in the above-entitled action, to be used in all further proceedings in said action.” The record also shows that, prior to this time, an extension of the time to settle the case was allowed the defendant by the trial court provided that he filed his exceptions to the charge within a time limited. The certificate of the judge and this prior condition imposed upon the extension of the time for the statement of the case must be construed to be a waiver by that court of any limitation upon the time imposed at the trial for filing the exceptions to the charge, if any waiver there was. We must, therefore, on this rehearing, overrule the ruling made in § 12 of the syllabus and the statement in the main opinion upon which same is based, as the waiver, if any, has been excused by the trial court. Our attention has also been called to the fact, which also was not emphasized in the argument or brief of counsel, that though the first objection to the testimony of Dr. Semple, and in which he stated as an expert that in his opinion the death of the deceased was the result of blood poisoning and that she was pregnant a short time before her death, was based upon the propo-. sition that it was in answer to a question which called for an opinion which itself was based upon an opinion, his objection was afterwards repeated in a form which added to the objections one that the doctor was called upon to invade the province of the jury.
¶4The objection has much of suggestion in it, and is unquestionably supported by some of the authorities. It would probably be considered in Connecticut, Indiana, New York, and the Supreme Court of the United States. In Texas it would perhaps have once been considered (see Williams v. State, 37 Tex. Crim. Rep. 348, 39 S. W. 687), but hardly now (see Davis v. State, 54 Tex. Crim. Rep. 236, 114 S. W. 366 ; St. Louis South Western R. Co. v. Hall, — Tex. Civ. App. —, 81 S. W. 571). It would probably not be valid in Alabama,. Arkansas, Delaware, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michi*379gan, Minnesota, Missouri, Ohio, Pennsylvania, West Virginia, Wisconsin, and England. It is true that counsel for appellant cites cases from these states (Porter v. State, 135 Ala. 51, 36 So. 695 ; Gunter v. State, 83 Ala. 96, 3 So. 600 ; Page v. State, 61 Ala. 16 ; People v. Aikin, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N. W. 828, 7 Am. Crim. Rep. 345 ; Luning v. State, 2 Pinney (Wis.) 215, 52 Am. Dec. 154 ; People v. Millard, 53 Mich. 63, 18 N. W. 563), as supporting his contention. These cases, however, have either been since overruled or are eases in which there was a material conflict in the testimony as to the facts. The real state of the law upon the subject is laid down in vol. 17, page 253, of Oyc., where it is said: “A desire to economize time has occasionally induced the court to permit a witness examined as an expert, to ascertain the facts directly from the evidence. In some jurisdictions, but not in all, where the facts are undisputed, an expert who has heard all the testimony may be asked for his judgment ‘upon the evidence,’ provided that he has heard the whole of it or is familiar with it, or even upon such part of it as is material to the inquiry. . . . In some jurisdictions the practice of allowing an expert witness to ascertain the facts directly from the evidence, instead of them being embodied in a hypothetical question, has been condemned and generally disallowed; and even where the practice is allowed it is subject to limitations. There are serious objections to any other than the hypothetical question': (1) The course under consideration cannot be adopted where the facts are disputed. The witness cannot properly be asked for his judgment as to disputed matters of fact, to comment on the evidence, or to include his ‘understanding’ of the evidence of another witness or as to the credibility of a witness. (2) The practice unnecessarily invades the province of the jury.” The overwhelming weight of authority is to the effect that such questions and evidence are permissible, provided that there is no material conflict as to the basic facts, a clear and radical distinction being made between a conflict as to the facts and a conflict as to the conclusion which the different witnesses have drawn from them. In North Dakota we have followed the majority rule as laid down in Cyc. In the case o? Walters v. Rock, 18 N. D. 45, 54, 115 N. W. 511, this court said: “This question was also objected to when asked of the same witness: ‘You read the testimony of Dr. Rea, and you heard the testimony of Dr. Rogers read, *380you heard the testimony of Mr. Rock in regard to the condition of his-, lip; now from the testimony of Dr. Rea, Dr. Rogers, and Mr. Rock,, state whether or not in your opinion Mr. Rock was suffering from a. cancerous growth on his lip at the time he was treated by Dr. Rea in May, 1904.’ The objection to this question was that it called upon tbe witness to pass upon tbe credibility of tbe witnesses in case of' conflict. On examination of the evidence given by these witnesses, we-find no conflict as to tbe facts stated by them. Tbe conclusion or-opinion of Dr. Rea as to what defendant was suffering from differed from that of tbe other medical witnesses, but as to tbe facts and conditions of tbe ailment there was no difference. For this reason the evidence was not objectionable, and did not call upon tbe witness to decide facts properly for tbe jury. Tbe form of tbe question is not to be-commended. It is a safer practice to incorporate all tbe facts relied on in a hypothetical question.” We have examined tbe evidence in the-case at bar with a great deal of care, and fail to discover any material conflict in tbe basic facts testified to by tbe physicians in tbe case; the conflict is over tbe conclusions merely. Such being tbe case, there is no reversible error.
¶5Counsel for appellant also reargues bis former objections to tbe portion of tbe charge which states: “I charge you, gentlemen of tbe jury,, that our law presumes that a person intends tbe ordinary consequences, of bis voluntary act, and such a presumption may be satisfactory if uncontradicted. Tbe law further presumes that an unlawful act was done with an unlawful intent, and if tbe state has shown to your satisfaction beyond a reasonable doubt that an unlawful act was committed by tbe defendant, that said unlawful act, or acts, was tbe act charged in this information, then you are at liberty to presume that tbe same was done with an unlawful intent, and that be intended tbe ordinary consequences of bis voluntary act unless tbe same is contradicted.” After reargument, however, we still can find no particular fault with tbe portion of this instruction which charges that one intends tbe ordinary consequences of his voluntary act. Tbe basic offense is defined in § 8912, which provides that “every person who administers to a pregnant woman, ... or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless tbe same is necessary to preserve her life, is punishable *381Iby imprisonment in the penitentiary,” etc. One of the main points at issue was whether the defendant intended to procure the miscarriage, .and the question was from what might the jury infer such intention or how might the same be proved. Even if the intent to procure the miscarriage was proved, its non-necessity was not necessarily also proved, •and this really was the crucial matter, and on this the jury was fully instructed that the burden of proof was upon the state. In instructing the jury that one intends the ordinary consequences of his voluntary ■act, the court merely instructed the jury that if they believed that the ■defendant inserted an instrument into the womb of the deceased, and was the occasion of the puncture in the uterus which the post mortem •examination disclosed, and that the ordinary result of such rupture and such insertion would result in a miscarriage, and that in fact such miscarriage resulted therefrom, then the intent to procure the miscarriage could be implied. On this point the supreme court of Colorado in the case of Dougherty v. People, 1 Colo. 514, said: “It is the administering of the noxious substance, or the use of the instruments with intent to produce a miscarriage, that makes up the crime — and as to the intent it may be remarked that it is a well-settled rule of law that a sane man, a voluntary agent acting upon motives, must be presumed to contemplate and intend the necessary, natural, and probable ■consequences of his own acts. If, therefore, one voluntarily or wilfully does an act which has a direct tendency to destroy another’s life, the natural or necessary conclusion from the act is that he intended so to destroy such life. . . . So, when a physician inserts into the womb of a woman pregnant with child instruments calculated to produce irritation and serious derangement of the female economy, and abortion follows, the intention to produce that result is a necessary conclusion from the act.” We are unable to see wherein this portion of the instruction did not correctly state the law upon the subject; nor do we believe that the defendant can complain of the same in view of the fact that the jury was repeatedly instructed that the burden of the proof was on the state to prove the non-necessity of such miscarriage, as well as all the material allegations of the information. As far as the portion of the charge is concerned which tells the jury that “the law presumes that an unlawful act was done with an unlawful intent, and if the state has shown to your satisfaction beyond a reasonable doubt that *382an unlawful act was committed by the defendant, that said unlawful act, or acts, was the act charged in the information, then you are at liberty to presume that the same was done with an unlawful intent/5, we are quite satisfied that the same was not only uncalled for and unnecessary in this particular case, but that it should not be given in cases of this kind at all. We hold, indeed, that under § 8912 and ¶ 3 of § 8789, Rev. Stat. 1905, the only criminal intent involved is the intent to procure or bring about a miscarriage which is not necessary to save the life of the woman, and that the burden of proving this non-necessity is upon the state. State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. On this, however, the jury was fully instructed, and upon reading the whole of the charge we cannot, without indulging in a metaphysical refinement, which the ordinary mind is unable to follow, and which is elusive even to the mind of the technical lawyer, conceive of any way in which the jury could have been misled or the defendant prejudiced. The court undoubtedly had in his mind the implied malice or intent which was a prerequisite to the crime of murder at the common law. In the case at bar it would seem that this implied malice was not necessary to be proved or presumed, and the instruction therefore was unnecessary. That it was unnecessary, however, does not prove in any sense that it was harmful, and on reading the charge as a whole we cannot believe that it was so. The instruction in short seems to have been thought necessary by the court on account of the language used in State v. Belyea, 9 N. D. 353, 83 N. W. 1, in which this court said: “Reference is here made to the repeated employment of the phrase, ‘maliciously, wilfully, and of their malice aforethought.5 These words import and correctly describe a deliberate homicide. In other words, they constitute the best possible description of motive in the crime of murder in the first degree, nor are such words either necessary or proper in describing the crime defined by § 7177 (Rev. Codes 1895). To that offense ‘malice aforethought5, is not essential. On the contrary, that statutory crime may be fully consummated without any criminal purpose and by one animated only by kindly motives. The offense is committed if the designated means are used upon a pregnant woman with the intent to procure the miscarriage of such woman, when such miscarriage is not in fact necessary to save the life of the woman. The law leaves it for a jury to de*383termine whether or not any miscarriage was necessary to save the life of the pregnant woman, and if, in the judgment of twelve men, a miscarriage of the woman was not necessary to save her life, a verdict of guilty may be returned regardless of the motives governing the accused. It is therefore entirely clear that words which are adapted only to a description of murder in the first degree are wholly out of place and confusing when used to describe the minor offense described in § 7177.” In giving it, the trial judge undoubtedly was merely seeking to make clear to the jury the fact that, though the crime charged was that of murder in the second degree, and not the unlawful bringing about of the miscarriage, no specific intent was necessary to be proved to accomplish that murder, but the intent to procure a miscarriage which was unnecessary was all that needed to be proved. We do not approve of the instruction, but we do not think that its giving was a reversible error.
¶6The same is true of the instruction, also excepted to by the appellant, which states: “But, gentlemen, upon a trial for murder where a commission of homicide by the defendant has been proved, the burden of proving circumstances of mitigation or that justify or excuse, that devolves upon the defendant unless the proof on the part of the prosecution tends to show that the crime committed amounts to manslaughter, or that the crime committed was justifiable or excusable.” This instruction, we believe, has no place in a case like the one at bar. In order to bring the prosecution within ¶ 3 of the above section, which provides that a homicide may be committed “when perpetrated without any design to effect death by a person engaged in the commission of any felony,” the state must allege the lack of design to effect the death, and must prove and allege the commission of the subsidiary felony. In the case at bar no felony was committed unless the operation was unnecessary, and the burden of proving this non-necessity was upon the state. There was, therefore, no justification to be proved. Even in a case where the instruction would have been proper, it should have contained the qualification that if, after consideration of all of the evidence in the ease, the jury believed the defendant was justifiable or excusable in his acts, or if they entertained a reasonable doubt upon this subject, they should find him not guilty. See Williams v. State, — Okla. Grim. Rep. —, 131 Pac. 179. We cannot, however, believe *384that the charge was prejudicial. That the state was compelled to prove beyond a reasonable doubt all of the material allegations of the complaint was repeatedly emphasized to the jury. If these facts were proved, the defendant had no justification or excuse that he could plead or prove. The only effect that the charge could have had, therefore, on the jury would have been to have made them believe that even if the state proved all the material allegations of the complaint, that is to say, the fact of the criminal operation by the defendant, its non-necessity, and the death of the deceased as a consequence thereof, that still there was a defense of justification or excuse which could be relied upon by the defendant. It, in fact, was beneficial to the defendant, and not prejudicial, and though erroneous, was not reversible error. It is the duty of this court to insist that a defendant has all the rights that the law allows to him, and that he shall have a fair trial, but it is not its duty to enter into the domain of metaphysics, and to imagine prejudice where no prejudice can in fact exist.
¶7We can see no reason for receding from our former position in this case, and the order heretofore entered and affirming the judgment of the trial court will stand.