¶1dissenting.
¶2I dissent to issue number 4, which is a challenge to the sufficiency of the evidence of the defendant’s sanity at the time the criminal act was committed. In so doing I *454pass no judgment upon the issue that was before the jury, i. e. whether nor not the defendant was insane under the rule laid down in Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429; nor would I in any way alter that rule or change the requirements of evidence, quantitatively or qualitatively to withstand a sufficiency challenge upon appeal.
¶3The criminal acts of the defendant were bizarre, but this does not preclude his having been sane under the Hilltest. However, neither does the commission of crimes, standing alone, evidence sanity; although the manner in which the criminal acts are performed and the conduct of the actor may evidence either.
¶4The State amply proved that the defendant committed the criminal acts charged. The defendant rested, without testifying himself, after introducing considerable evidence of his insanity, as set forth in the majority opinion. The State offered no evidence to rebut such evidence of insanity.
¶5I find no prior Indiana cases where a conviction has been reversed because of the insufficiency of evidence of the defendant’s sanity. It is clear, however, that once the issue of sanity has been properly raised and competent evidence of probative value has been introduced evidencing a defendant’s insanity at the time the criminal acts were committed, the burden is upon the State to prove, beyond a reasonable doubt, that the defendant was sane. Johnson v. State, (1970) 255 Ind. 324, 264 N.E.2d 57; Flowers v. State, (1956) 236 Ind. 151, 139 N.E.2d 185.
¶6A substantial number of cases from other jurisdictions have been reversed by reason of the State’s failure to meet this burden. State v. White, (1974) 110 Ariz. 508, 520 P.2d 1132; People v. Silver, (1974) 33 N.Y.2d 475, 354 N.Y.S.2d 915, 310 N.E.2d 520; United States v. Bass, (5th Cir. 1974) 490 F.2d 846; Bishop v. United States, (5th Cir. 1968) 394 F.2d 500; Farrell v. State, (Fla.1958) 101 So.2d 130; Douglas v. United States, (1956) 99 U.S.App.D.C. 232, 239 F.2d 52; People v. Skeoch, (1951) 408 Ill. 276, 96 N.E.2d 473; Handspike v. State, (1947) 203 Ga. 115, 45 S.E.2d 662; Britts v. State, (1947) 158 Fla. 839, 30 So.2d 363; Graham v. People, (1934) 95 Colo. 544, 38 P.2d 87.
¶7At least one case suggests that the outcome might have been different had the defendant testified; but that as he 'did not, the jury had no opportunity to form an opinion concerning his sanity, based upon his appearance and demeanor upon the witness stand and the coherence or incoherence of his testimony. Graham v. People, supra.
¶8I question the wisdom of relying upon such appearances under the Hilltest, however, where the defendant’s ability to conform his conduct may be a determinative factor as well as his appreciation of the wrongfulness of his act.
¶9In considering the issue of sanity, the jury is not confined to the opinions of the witnesses, expert or lay. Riggs v. State, (1976) 264 Ind. 263, 342 N.E.2d 838; Moore v. State, (1973) 260 Ind. 154, 293 N.E.2d 28. They may rely upon their own judgment based upon the facts in evidence, Johnson v. State, supra, which would include, the acts' of the defendant, before and after the commission of the crime, as well as during its progress, provided they were not too remote to be relevant. - However, if such evidence is to be sufficient, it may not merely be consistent with a hypothesis of sanity but must be inconsistent with the hypothesis of insanity.
¶10There is no conflict in the evidence, and, as we said in Teague v. State, (1978) Ind., 379 N.E.2d 418, in a sufficiency of the evidence review, “ … we consider only the evidence most favorable to the state together with all logical and reasonable inferences which may be drawn therefrom. If, from that viewpoint, we find substantial evidence of probative value from which the trier of fact could have reasonably inferred that the defendant was guilty beyond a reasonable doubt, the conviction may not be disturbed.”
“ … in our review, we must also accommodate for possible unreasonableness of the fact finder’s verdict, otherwise our review would be but a sham and a useless exercise in futility. If the infer*455ence drawn by the trier of facts must rest upon speculation or conjecture, it cannot be drawn beyond a reasonable doubt, and we are required to set it aside. ‘It is not enough to sustain a conviction that the evidence, when given full faith and credit, may warrant a suspicion or amount to a scintilla.’ Baker v. State, (1956) 236 Ind. 55, 60, 138 N.E.2d 641.” Shutt v. State, (1977) Ind., 367 N.E.2d 1376, 1378.
¶11This is not to say that upon appellate review the evidence must exclude every reasonable hypothesis of innocence in order that a verdict of guilty be affirmed. On the contrary, “ … where there are two reasonable inferences arising from the circumstantial evidence in a case, one of guilt and another of innocence, it is not the duty or right of this court to reverse simply because we might believe the circumstances do not exclude every reasonable hypothesis of innocence.” Ruetz v. State, (1978) Ind., 373 N.E.2d 152, 157. But, “ … a reasonable inference of guilt, sufficient to base a conviction upon, must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.” Ruetz v. State, supra.
¶12The foregoing rules of appellate review are applicable in all cases. They do not change with the circumstances of the case. Therefore, if the defendant’s sanity has been placed in issue, as it was in this case, by the introduction of substantial evidence of probative value of his insanity, the burden fell upon the State to prove that the defendant was sane under the Hilltest, at the time he committed the criminal acts; and such burden could be sustained only by substantial evidence of probative value from which a reasonable trier of fact could infer such sanity, beyond a reasonable doubt. By failing to rebut directly the evidence of insanity, the trier of fact was left to infer the defendant’s sanity from his actions in the commission of the criminal acts. True, they might have been the actions of a sane man. Just as true, however, they might have been the actions of a man insane under the Hilltest. From this point of view it requires conjecture to draw an inference of the defendant’s sanity and hence his guilt. As such, the evidence can support only a suspicion of guilt and not an inference thereof that could be drawn by a reasonable man beyond a reasonable doubt.
¶13In my judgment the holding of the majority is the equivalent of placing the burden upon a defendant to prove his insanity, if that be his defense. To do so may well be advisable and without constitutional impediment, but it has not heretofore been the law of this state.
¶14It has recently been determined by the Supreme Court of the United States that a defendant obtaining a reversal of his criminal conviction by reason of the insufficiency of the evidence may not be re-tried. Burks v. United States, (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. I do not interpret that ease as requiring us to order that the defendant be discharged. It is clear from the record that the defendant committed the criminal acts charged, and the jury so found, beyond a reasonable doubt. The only impediment to the conviction is the absence of substantial and probative evidence of his sanity at that time. The jury could have arrived at one of four verdicts: not guilty, guilty as charged, guilty of a lesser, necessarily included offense or not guilty by reason of insanity. The verdict rendered, together with a record of substantial probative evidence supportive of it, logically precludes an order of dismissal; and a verdict of guilty is precluded by the absence of evidence of criminal responsibility. This leaves “not guilty by reason of insanity” as the only tenable result of the trial.
¶15In Burks v. United States, supra, the Supreme Court stated that had the District Court ruled properly, a judgment of acquittal would have been entered pursuant to Federal Rules of Criminal Procedure 29. The Court did not elaborate, but neither did it direct a verdict of not guilty or a dismissal of the cause. Rather, it reversed the judgment of the trial court and remanded the case “for proceedings consistent with this opinion.”
¶16*456We have no rule which is the equivalent of Federal Criminal Procedural Rule 29, hence we do not have to reckon with whether it requires an absolute acquittal under such circumstances or whether it would permit a qualified acquittal. Under the circumstances of the case before us, which appears to be identical to those of the Burkscase, had a motion for judgment on the evidence been made at the close of all of the evidence, it would not have been proper to have directed a verdict of absolute acquittal. However, there being insufficient evidence upon the sanity issue to support a verdict of guilty, the defendant would have been entitled to have that issue withdrawn from the jury. Accordingly, the jury would have been left with two possible verdicts: not guilty and not guilty by reason of insanity. The verdict of guilty, of necessity is a finding that the defendant committed the criminal acts charged. Inasmuch as there was no evidence to sustain the State’s burden of proof upon the sanity issue, such verdict is the equivalent of a verdict of not guilty by reason of insanity. Accordingly, I would remand the case to the trial court with instructions to enter a verdict of not guilty by reason of insanity and to proceed in accordance with the provisions of Ind. Code § 35-5-2-5.