¶1The plaintiff in error was indicted for murder, and was convicted. The evidence in the case was entirely circumstantial. And although its tendency is to create an impression in the mind unfavorable to a belief of the innocence of the accused, it is not sufficiently strong, in our opinion, to warrant his conviction.
¶2While circumstantial evidence is, in its nature, capable of producing the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and vigilance should be used.
¶3A distinguished writer on the law of evidence has said, that “ it is always insufficient, where assuming all to be proved, which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evi*663dence cannot amount to proof, however great the probability may be.” 1 Stark. on Ev., 572. We do not deem it proper to comment upon the evidence, as the case will be reversed, and the prisoner again tried. In our opinion, however, the circumstances proved in this record against the accused, did not warrant his conviction. We, therefore, reverse the judgment and remand the case.