dissent">John B. Robbins, Judge,

dissenting. I must dissent from the majority opinion of this court which today holds that the second degree murder conviction of William Keith Paige is supported by substantial evidence.

Mr. Paige was the sole passenger in an automobile being driven by Herbert Waits on McCain Boulevard in North Little Rock. The auto was seen careening off the road and colliding with a telephone pole. Waits was dead when removed from the vehicle. The cause of death was a single gunshot from Waits’ .380 caliber pistol while pressed against Waits’ right temple. The pistol was found in the car seat between Waits’ legs. The Arkansas State Crime Lab found gunshot residue on both of Waits’ hands and both of Paige’s hands.

The only reasonable inference which can be drawn from these facts is that one of these two men was suicidal. Either Waits shot himself, or Paige shot Waits while their auto was traveling down McCain Boulevard, which would be tantamount to a suicide attempt. There is absolutely no evidence that Paige had ever threatened suicide or given any indication that he was suicidal. There was testimony, however, that Waits was despondent because his wife had left him and had attempted suicide about two years earlier, and only three weeks earlier his wife left him again and Waits mentioned that he might attempt suicide again. There was further testimony that only some two or three hours prior to his death, Waits placed his gun to his head and said “You know, death ain’t nothing but a word. I’ll kill myself. I don’t care.”

Furthermore, there was no proof of any motive for Paige to kill Waits. These men worked together and were close friends. Paige had drunk fourteen cans of beer and a pint of E&J (brandy) that evening and had passed out in the passenger’s seat of the car. Under these circumstances his failure to recall having fired Waits’ pistol earlier that evening is not unreasonable.

While it is true the jury must determine whether the circumstantial evidence is sufficient to exclude every other reasonable hypothesis consistent with a defendant’s innocence, it is insufficient as a matter of law when the circumstantial evidence leaves the jury solely to speculation and conjecture as to a defendant’s guilt. See Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). This is such a case. There is no substantial evidence, direct or circumstantial, which would enable a jury to find Paige guilty of murder. I would reverse.

Mayfield, J., joins in this dissent.

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