¶1The prosecution and conviction in this case were under art. 536 of the Penal .Code, for procuring an abortion upon one Fannie Cooper, a pregnant woman, with her consent, by means of drugs and medicines administered to her. The indictment alleges the offence to have been committed on the 1st of October, 1878. Two witnesses testified to the facts of the abortion: the first, Mrs. Vineyard, fixing the date of the occurrence in December, 1877, and the other, Alexander Brown, testifying that it occurred in September, 1878. We have examined the testimony, as set out in the statement of facts, with great care, and we ar.e constrained to say that it does not impress and satisfy us with that certainty of defendant’s guilt of the grave crime of which he has been convicted, to the degree that we can give our consent that the judgment should stand as a precedent. ■
¶2“ To sustain a conviction it. should appear, not only that an offence as charged has been committed, but there also should be proof tending to establish that the party charged was the peason who committed it, or was a participant in its commission, to a degree of certainty stronger than a mere probability or strong suspicion.” Tollett v. The State, 44 Texas, 99; King v. The State, 4 Texas Ct. App. 256 ; Jones v. The State, 4 Texas Ct. App. 436; Jones v. The State, 7 Texas Ct. App. 457 ; Barnell v. The State, 5 Texas Ct. App. 113.
¶3*374The proof of the corpus delicti, as exhibited in the record, is just of that uncertain and unsatisfactory character as that the court, in our opinion, should have granted a new trial in order that the defendant might have had the benefit of the testimony of the witness Emily Cook as to the facts stated in her affidavit in support of the motion.
¶4Because the court should have granted a new trial, in view of the uncertainty of the evidence, and the strong probability, under the circumstances disclosed in the motion, that other and more certain testimony could and would be produced, which might affect the verdict on another trial, the judgment will be reversed and a new trial awarded.
¶5Reversed and remanded.