Krivosha, C. J.
The defendant, Lena J. Doyle, was charged in a two-count information with second degree murder in violation of section 28-402, R. R. S. 1943 (count I), and feloniously throwing away a dead human body in violation of section 28-1033, R. R. S. 1943 (count II). At the close of all the evidence, the State having rested, and the defendant having elected to put on no evidence, the court found that the State had failed as a matter of law to prove second degree murder and withdrew count I from consideration by the jury. Instead, the trial court instructed the jury on the crime of manslaughter. The jury returned a verdict of guilty on both the charges of manslaughter and feloniously throwing away a dead body. The defendant assigns as one of the errors the trial court’s failure to sustain the defendant’s motion to dismiss [236]*236as to count I. We agree with the defendant that the motion should have been sustained and accordingly reverse the action of the trial court in that regard.
The State offered evidence to show that in late July and early August of 1978, the defendant was observed by neighbors and relatives in Maywood, Nebraska, and from their observations concluded that the defendant was pregnant. One witness testified on behalf of the State that she had asked the defendant when her baby was due and the defendant gave a date of August 8th. The witnesses further testified that following August 5th defendant was again seen by various witnesses and in their opinion was no longer pregnant.
On August 9, 1978, pursuant to a search warrant, a dead human infant was found on the premises occupied by the defendant and her family. The body of the infant was examined by a pathologist on August 9, 1978, and he testified that the infant was at or near term. The pathologist further testified that in his opinion the infant had been born alive. The autopsy, however, disclosed that there was no evidence of either internal or external trauma. Furthermore, the pathologist could not state what was the cause of death.
At the conclusion of the State’s case, the defendant moved for dismissal. The trial court overruled the motion and the defendant elected to put on no evidence and rested. The defendant again moved for a dismissal on the basis that there was insufficient evidence to establish guilt beyond a reasonable doubt. Following the motion and argument, several questions posed by the trial court indicate the difficulty the court was having with the evidence. The court asked, “Do you see any evidence of killing here?” to which the State’s attorney replied: “Principally as I indicate due to the decomposed, direct evidence no, as to the decomposed condition of that body it’s impossible. As to expert testimony, as to [237]*237probabilities, there is, strangulation or suffocation.
“THE COURT: What circumstantial evidence do you find of the killing?
“MR. SCHRODER: Dr. Deters’ testimony, as this being a probable cause of death.
“THE COURT: Would you amend that to say possible?
“MR. SCHRODER: Yes. * * *.”
The trial court again overruled the motions to dismiss but, just prior to meeting with counsel to go over the instructions, advised counsel, “* * * I’m going to withdraw second degree murder and submit manslaughter, and, of course, the disposal of a dead body. * * * I just feel that there’s been no showing of a killing in this case. There’s a showing of a death, but no killing; no intentional killing.”
The trial court then instructed the jury in part as follows: “On Count I of the information in this case, depending on the evidence, you could have found the defendant: a. Guilty of murder in the second degree, or b. Guilty of manslaughter, or c. Not guilty. However, the court has determined as a matter of law and you must accept as true that the state has failed to prove beyond a reasonable doubt that the defendant is guilty of murder in the second degree. Therefore, you shall then proceed to consider the lesser included offense of manslaughter.” The court then instructed the jury on elements which the State must prove beyond a reasonable doubt in order to convict the defendant of the crime of manslaughter, including: “1. That the defendant, Lena J. Doyle, killed a newborn human being. 2. That she did so without malice, unintentionally, while Lena J. Doyle was in the commission of some unlawful act.”
The court further instructed the jury with regard to the matter of the commission of an unlawful act as follows: “In this regard, you are instructed that the only unlawful act which you are to consider is that of endangering the health of a child as provided [238]*238by a statute of the state of Nebraska. * * * The material elements which the state must prove beyond a reasonable doubt in order for you to find the defendant guilty of this unlawful act are: 1. That the defendant had the care, custody or control of the child. 2. That the defendant: (a) Willfully or negligently caused or permitted the life of such child to be endangered. OR (b) Willfully or negligently caused or permitted the health of such child to be injured. OR (c) Willfully caused or permitted such child to be placed in such a situation that its life or health may have been endangered.”
An examination of the record discloses that the trial court was absolutely correct when it determined that there was not sufficient evidence to establish a killing. At best the evidence, almost exclusively circumstantial in nature, disclosed that a child was born to the defendant and that the child died. The pathologist was unable to testify as to any cause of death and could not testify that the cause of death was not from natural causes. Obviously, the trial court had concluded that the State had failed to prove a killing beyond a reasonable doubt as the State was required to do. There is no doubt that a defendant may not be convicted except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged. In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368. Evidence is sufficient to sustain a guilty verdict only when the jury could properly find guilt beyond a reasonable doubt. State v. Alcorn, 187 Neb. 854, 194 N. W. 2d 798.
The mere fact that a child is born alive and then dies is not sufficient evidence to convict a defendant beyond a reasonable doubt of having killed the child.
In addition, however, for all the reasons for which the trial court concluded it could not submit to the jury the issue of second degree murder, the court was compelled to reach the same conclusion with re[239]*239gard to the charge of manslaughter in this case. The court correctly instructed the jury that in order for the defendant to be guilty of manslaughter, an unlawful act had to have been committed by the defendant in the course of which the infant was killed. The trial court was not able to discover any evidence introduced by the State upon which the jury could find beyond a reasonable doubt that the defendant had been engaged in some unlawful act in the course of which the infant was killed. The court attempted to fill that gap by instructing the jury on the provisions of section 38-116, R. R. S. 1943 (endangering the health of a child). However, the elements necessary to constitute a violation of that statute were likewise lacking in the evidence.
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Krivosha, C. J.
The defendant, Lena J. Doyle, was charged in a two-count information with second degree murder in violation of section 28-402, R. R. S. 1943 (count I), and feloniously throwing away a dead human body in violation of section 28-1033, R. R. S. 1943 (count II). At the close of all the evidence, the State having rested, and the defendant having elected to put on no evidence, the court found that the State had failed as a matter of law to prove second degree murder and withdrew count I from consideration by the jury. Instead, the trial court instructed the jury on the crime of manslaughter. The jury returned a verdict of guilty on both the charges of manslaughter and feloniously throwing away a dead body. The defendant assigns as one of the errors the trial court’s failure to sustain the defendant’s motion to dismiss [236]*236as to count I. We agree with the defendant that the motion should have been sustained and accordingly reverse the action of the trial court in that regard.
The State offered evidence to show that in late July and early August of 1978, the defendant was observed by neighbors and relatives in Maywood, Nebraska, and from their observations concluded that the defendant was pregnant. One witness testified on behalf of the State that she had asked the defendant when her baby was due and the defendant gave a date of August 8th. The witnesses further testified that following August 5th defendant was again seen by various witnesses and in their opinion was no longer pregnant.
On August 9, 1978, pursuant to a search warrant, a dead human infant was found on the premises occupied by the defendant and her family. The body of the infant was examined by a pathologist on August 9, 1978, and he testified that the infant was at or near term. The pathologist further testified that in his opinion the infant had been born alive. The autopsy, however, disclosed that there was no evidence of either internal or external trauma. Furthermore, the pathologist could not state what was the cause of death.
At the conclusion of the State’s case, the defendant moved for dismissal. The trial court overruled the motion and the defendant elected to put on no evidence and rested. The defendant again moved for a dismissal on the basis that there was insufficient evidence to establish guilt beyond a reasonable doubt. Following the motion and argument, several questions posed by the trial court indicate the difficulty the court was having with the evidence. The court asked, “Do you see any evidence of killing here?” to which the State’s attorney replied: “Principally as I indicate due to the decomposed, direct evidence no, as to the decomposed condition of that body it’s impossible. As to expert testimony, as to [237]*237probabilities, there is, strangulation or suffocation.
“THE COURT: What circumstantial evidence do you find of the killing?
“MR. SCHRODER: Dr. Deters’ testimony, as this being a probable cause of death.
“THE COURT: Would you amend that to say possible?
“MR. SCHRODER: Yes. * * *.”
The trial court again overruled the motions to dismiss but, just prior to meeting with counsel to go over the instructions, advised counsel, “* * * I’m going to withdraw second degree murder and submit manslaughter, and, of course, the disposal of a dead body. * * * I just feel that there’s been no showing of a killing in this case. There’s a showing of a death, but no killing; no intentional killing.”
The trial court then instructed the jury in part as follows: “On Count I of the information in this case, depending on the evidence, you could have found the defendant: a. Guilty of murder in the second degree, or b. Guilty of manslaughter, or c. Not guilty. However, the court has determined as a matter of law and you must accept as true that the state has failed to prove beyond a reasonable doubt that the defendant is guilty of murder in the second degree. Therefore, you shall then proceed to consider the lesser included offense of manslaughter.” The court then instructed the jury on elements which the State must prove beyond a reasonable doubt in order to convict the defendant of the crime of manslaughter, including: “1. That the defendant, Lena J. Doyle, killed a newborn human being. 2. That she did so without malice, unintentionally, while Lena J. Doyle was in the commission of some unlawful act.”
The court further instructed the jury with regard to the matter of the commission of an unlawful act as follows: “In this regard, you are instructed that the only unlawful act which you are to consider is that of endangering the health of a child as provided [238]*238by a statute of the state of Nebraska. * * * The material elements which the state must prove beyond a reasonable doubt in order for you to find the defendant guilty of this unlawful act are: 1. That the defendant had the care, custody or control of the child. 2. That the defendant: (a) Willfully or negligently caused or permitted the life of such child to be endangered. OR (b) Willfully or negligently caused or permitted the health of such child to be injured. OR (c) Willfully caused or permitted such child to be placed in such a situation that its life or health may have been endangered.”
An examination of the record discloses that the trial court was absolutely correct when it determined that there was not sufficient evidence to establish a killing. At best the evidence, almost exclusively circumstantial in nature, disclosed that a child was born to the defendant and that the child died. The pathologist was unable to testify as to any cause of death and could not testify that the cause of death was not from natural causes. Obviously, the trial court had concluded that the State had failed to prove a killing beyond a reasonable doubt as the State was required to do. There is no doubt that a defendant may not be convicted except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged. In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368. Evidence is sufficient to sustain a guilty verdict only when the jury could properly find guilt beyond a reasonable doubt. State v. Alcorn, 187 Neb. 854, 194 N. W. 2d 798.
The mere fact that a child is born alive and then dies is not sufficient evidence to convict a defendant beyond a reasonable doubt of having killed the child.
In addition, however, for all the reasons for which the trial court concluded it could not submit to the jury the issue of second degree murder, the court was compelled to reach the same conclusion with re[239]*239gard to the charge of manslaughter in this case. The court correctly instructed the jury that in order for the defendant to be guilty of manslaughter, an unlawful act had to have been committed by the defendant in the course of which the infant was killed. The trial court was not able to discover any evidence introduced by the State upon which the jury could find beyond a reasonable doubt that the defendant had been engaged in some unlawful act in the course of which the infant was killed. The court attempted to fill that gap by instructing the jury on the provisions of section 38-116, R. R. S. 1943 (endangering the health of a child). However, the elements necessary to constitute a violation of that statute were likewise lacking in the evidence. There was no evidence offered by the State that had the defendant done something, which she did not do, the infant would have lived; nor that had she not done anything, which she did do, the infant would have lived. There was, in short, no evidence that the defendant had willfully or negligently caused or permitted the life of such child to be endangered or the health of such child to be injured, or permitted the child to be placed in such a situation that its life or health may have been endangered. One may speculate on that point, but speculation alone does not constitute evidence. Reyes v. State, 151 Neb. 636, 38 N. W. 2d 539. There was simply no testimony upon which the jury could have found the defendant guilty under section 38-116, R. R. S. 1943, beyond a reasonable doubt.
The most that could be said, as was said by the State, is that one who has a baby should not have the baby at home. There was, however, no evidence offered that had the child been born in a hospital rather than at home it would not have died. Likewise, there was no evidence that there was an opportunity for the defendant to get to a hospital before the child was born. The only evidence offered by the State was to the effect that a child was born, it [240]*240lived momentarily, and was thereafter found dead. That was not sufficient to submit a charge of manslaughter to the jury.
The traditional and prevailing view expressed by courts from other jurisdictions is that in a prosecution for killing a newly born baby it is incumbent upon the State to prove that the child was born alive and had an independent and separate existence apart from its mother and that the accused was the criminal agent causing the infant’s death. Lane v. Com., 248 S. E. 2d 781 (Va., 1978). See, also, White v. State, 238 Ga. 224, 232 S. E. 2d 57; Jackson v. Commonwealth, 265 Ky. 295, 96 S. W. 2d 1014; People v. Hayner, 300 N. Y. 171, 90 N. E. 2d 23; State v. Collington, 259 So. Car. 446, 192 S. E. 2d 856.
In the recent case of State v. Klutts, 204 Neb. 616, 284 N. W. 2d 415, we reviewed our rules with regard to a criminal conviction based upon circumstantial evidence, saying, “Where circumstantial evidence is relied upon, the circumstances proven must relate directly to the guilt of the accused beyond all reasonable doubt in such a way as to exclude any other reasonable conclusion.” To justify a conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proven by competent evidence beyond a reasonable doubt, and, when taken together, must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby and inconsistent with any other reasonable hypothesis of innocence. State v. Faircloth, 181 Neb. 333, 148 N. W. 2d 187. Any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused. State v. Klutts, supra.
In Reyes v. State, supra, we said, “[A] conviction should not be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the mere [241]*241fact that some unfavorable circumstances are not satisfactorily explained. ’ ’
We believe an examination of this record fails to disclose how the jury could possibly find beyond a reasonable doubt that the defendant had violated section 38-116, R. R. S. 1943, or that she was the criminal agent causing the infant’s death. In the absence of such evidence, the conviction cannot stand. The trial court should have sustained the defendant’s motion to dismiss both the second degree murder and manslaughter charges, and it was error for the court not to do so. Accordingly, we reverse that portion of the court’s ruling and remand said matter with instructions to dismiss Count I.
The evidence with regard to count II is somewhat different. Nevertheless, an examination of the record satisfies us that the circumstantial evidence adduced by the State with regard to count II was sufficient to permit the jury to find beyond a reasonable doubt that the defendant had feloniously disposed of a dead human body. After a jury has considered the evidence in light of our rules concerning circumstantial evidence and returned a verdict of guilty, the verdict on appeal may not, as a matter of law, be set aside for insufficiency of the evidence if the evidence sustained some rational theory of guilt. See, State v. Keeton, 199 Neb. 405, 259 N. W. 2d 277; State v. Sommers, 201 Neb. 809, 272 N. W. 2d 367. We have examined defendant’s assignments of error insofar as they apply to count II and find each of them to be without merit.
Accordingly, the judgment of conviction on count I is reversed and the cause remanded with directions to dismiss, and the judgment on count II is affirmed.
Affirmed in part, and in part REVERSED AND REMANDED WITH DIRECTIONS.