¶1 (concurring specially). The evidence in this case is entirely circumstantial. The court instructed the jury without exception, and I think correctly, in part as follows: “However, in order to convict the defendant on the charge made in this case, you must find that the defendant knew that he had struck some person or that his automobile had been involved in an accident which either had injured or might have injured some person and unless defendant knew that his car had struck some person or was involved in such accident you must acquit him.”
¶2 As I understand the rule, the evidence being circumstantial, it was essential that the state should introduce and prove to the satisfaction of the jury a chain of circumstances sufficient to- establish beyond reasonable doubt the guilt of the defendant, and of such kind and nature as to exclude any reasonable hypothesis other than defendant’s guilt. It is not enough that the circumstances shown by the state’s evidence are satisfactorily explainable on the theory of the defendant’s guilt, and it is not enough that a reasonable mind might believe the guilt of the defendant to be the most likely or most probable explanation of the circumstances proved. The circumstances proved must 'be convincing of guilt to such a degree that an attempt to explain them upon any hypothesis other than defendant’s guilt would be beyond the bounds of reason. In the instant case, and under the instructions of the court, the circumstances must be such that no reasonable man could explain them upon any hypothesis except that defendant’s car struck and killed the decedent and that defendant knew he had struck decedent, or at least knew that he had been involved in an accident which had injured, or might have injured, the decedent.
¶3 I think every circumstance proved by the state in this case can be true, and yet it would not be unreasonable to believe that *339 decedent was injured ¡by some automobile other than defendant’s; it would not be unreasonable to believe that, if defendant struck anything at all, he struck only the manhole cover or the “fire gun”; it would not be unreasonable to believe that defendant had no knowledge or consciousness that he had struck any person; and it would not be unreasonable to believe that defendant neither knew nor realized that his car had injured, or might have injured, any person whomsoever.
¶4 Admittedly, the guilt of defendant is a possible explanation of the circumstances proved, but to arrive at a conviction of that guilt beyond a reasonable doubt upon nothing more than the circumstances established by the state in this case seems to me to base a verdict upon speculation and conjecture. I do not think that any man in any case ought to be committed1 to the penitentiary upon proof by circumstantial evidence unless the circumstances much more completely exclude reasonable hypotheses compatible with innocence than do the circumstances proved' in this case.
¶5 I think, too, that there are other errors in the record, but the insufficiency of the circumstances proved to' exclude every reasonable hypothesis other than the guilt of the defendant (bearing in mind all the elements necessary to be proved under the instructions) seems to me the vital point in this case.
¶6 I concur, therefore, in the reversal.
¶7 (concurring specially). I am of the opinion that the evidence presented to the jury is sufficient to sustain the verdict. However, other assigned error seems to- me to necessitate a reversal. In view of the fact that three of the judges think the evidence insufficient, and are content to rest their decision on that feature of the case, nothing would be gained in an expression of my views on the error which in my opinion requires a reversal.