¶1Dissenting in Part. — I concur in the majority opinion affirming the judgment of conviction of Smith. Smith was positively identified by two witnesses as the man who committed the robbery, and there is substantial evidence upon which to base his conviction.
¶2In so far as appellant Mitchell is concerned the evidence is entirely circumstantial.
¶3*728In the case of State v. Marcoe, 33 Ida. 284, 193 Pac. 80, this court said: “In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt.”
¶4In that case, the court also said: “If the evidence can be reconciled either with the theory of innocence or guilt, the law requires that the theory of innocence be adopted.”
¶5The evidence in this case creates a suspicion that the defendant Mitchell committed the crime for which he was convicted, but, in my opinion, it is clearly insufficient upon which to base a conviction. None of the evidence is inconsistent with the innocence of Mitchell, and every part thereof is capable of explanation upon the hypothesis' that he is innocent.
¶6Applying the rule of law laid down in the case of State v. Marcoe, supra,to the evidence in this case, I am firmly of the opinion that the evidence is insufficient to sustain the verdict, and that the judgment should be reversed and a new trial ordered.