¶1Dissenting. — The evidence in this case is entirely circumstantial.
¶2In 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.”
¶3In that ease 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.”
¶4The evidence creates a suspicion that the defendant Abbott 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 Abbott, and every part thereof is capable of explanation upon the hypothesis that he is innocent.
¶5Applying 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.
¶6I am authorized to say that Mr. Justice William A. Lee concurs in this dissenting opinion.