¶1It is not disputed that Welch stole the prosecutor’s horse: the question here is, does the evidence prove Orr guilty also ? The testimony against him is entirely circumstantial. In order to convict upon this character of testimony, “ it is essential that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.” 1 Stark, Ev. 575. The evidence “ in criminal cases must exclude every other hypothesis but that of the guilt of the party.” 1 Greenl. Ev. 13. “ And this degree of conviction ought to be produced, when the facts proved coincide with and are legally sufficient to establish the truth of the hypothethis assumed, namely, the guilt of the party accused, and are inconsistent with any other hypothesis. For it is not enough that the evidence goes to show guilt; it must be inconsistent with the reasonable supposition of his innocence.” 3 Greenl. Ev. 29. “Circumstances, satisfactorily proven, which point to his guilt, and which are wreconcilahle with the hypothesis of his innocence,” etc.; “ circumstances which would authorize a Tocure conjedwre of guilt, are not sufficient to warrant a conviction.” Newman vs. the State, 26 Ga. 12., 637-8. Tried by these principles, the evidence fails to establish the guilt of Orr, It shows that he was in *346bad cam/pany, and might authorize “a bare conjecture of guilt,” but, we think, is not sufficient to “ generate full belief of the fact, to the exclusion of all reasonable doubt.” If it be true, as Orr said, that he left the cavalrymen, after passing Mrs. Pew’s, and went home, of course he is not guilty; and this is a very reasonable hypothesis, consistent with Orr’s innocence. In Newman’s case [26 Ga. R., 633] the circumstances were more strongly against defendant,in my opinion, than they are in this case; and there a new trial was granted, because the verdict was contrary to evidence.
¶2When this case was tried, in March, 1865, we remember an immense amount of horse-stealing was carried on, all over the country; and it is not surprising that Courts and juries, iu their zeal to punish offenders, should not only find the real parties guilty, hut should, sometimes, as in this instance, convict others who, by the testimony, are not shown beyond a reasonable doubt to be guilty. If this party be guilty, perhaps upon another trial the fact may be made more clearly manifest; if innocent, he should not be punished. We think the ends of justice require that there should he a new trial in thé case, which, accordingly, we direct.
¶3Judgment reversed.