¶1 (dissenting). I do not agree that there is evidence in this case sufficient under the statute to corroborate the testimony of the accomplice Walhood.
¶2 The evidence, to be sufficient, must tend to connect the defendant with the commission of the offense and it must come from a source entirely independent of the accomplice. State v. Coudotte, 7 N. D. 109, 72 N. W. 913. The evidence, which it is asserted corroborates the accomplice, is all circumstantial. Two principal circumstances are urged as being sufficient to justify an inference of the defendant’s connection with the commission of the offense. The first of these is, that the defendant, upon being told of the crime immediately fabricated a story in which he placed the blame upon fictitious persons; the second is that the defendant, upon hearing that a pocketbook had been stolen, withdrew with the accomplice from the rest of the group at the “Cave” and went with him into the kitchen where he conferred with him secretly. It might be that these circumstances would be sufficient, if proved, to justify an inference of the defendant’s connection with the commission of the offense, but, in my opinion, these circumstances or facts have not heen established. In this case, not only is the ultimate conclusion of defendant’s connection with the commission of the offense dependent upon circumstantial evidence, but the circumstances upon *435 which that ultimate conclusion is founded are in their turn also dependent upon circumstantial evidence. While it is true that the ultimate conclusion need only be that the facts proved tend to show the defendant’s connection with the commission of the offense, the facts upon which that conclusion rests must be positively established. When these facts in turn depend upon circumstantial evidence the inference of such facts must not only follow as logical conclusions from the circumstances proved but must also follow as the only reasonable conclusions. Jones, Commentaries on Evidence, § 364.
¶3 The fact that the defendant falsely placed the blame for the theft upon fictitious persons can be inferred only from the witness Anderson’s statement that “he (the defendant) said a couple of fellers been down there in the night and they might have my pocketbook” and the defendant’s statement that he slept all night. It is said, that since the defendant slept all night, he could not know whether strangers had been there in the night or not, and that the story is therefore pure fiction. The defendant, however, did not say that he saw or heard the strangers, he simply said there were strangers present. He did not explain how he learned of their presence, nor was he asked to explain. Other evidence in the case points to the truth of his statement. The witness Brooker testified:
¶4 “Q. Did you waken before morning ?
¶5 “A. I didn’t waken only to the extent to remember somebody went out and came in again, or came in and went out, because the door opened and shut.
¶6 “Q. The outside door ?
¶7 “A. The outside door.
¶8 “Q. You at that time saw Leo (the defendant) and Zimmer both in bed with you ?
¶9 “A. Yes, they were both in bed with me.”
¶10 The other two persons present in the Cave that night, Anderson and Walhood, both testified that they stayed in the building all night. Thus none of the five, who were rightfully in the building that night was responsible for the opening and closing of the outside door. The defendant and Brooker had slept together, they got up at the same time, and normally Brooker’s first subject of conversation would have been to mention what he had heard in the night. It would have been most *436 unusual if tbe defendant, having heard of the presence of strangers, had not mentioned it when he learned that a pocketbook had been stolen. Even if it is assumed that the jury wholly disregarded the testimony of Brooker, although it is uncontradicted, that testimony nevertheless pointedly shows that Anderson’s testimony as to what the defendant said, and defendant’s testimony that he slept all night, may be reasonably reconciled and that the inference that defendant attempted to place the blame on fictitious characters is not justified.
¶11 The fact that the defendant and the accomplice, Walhood, withdrew to the kitchen and conferred secretly can be inferred only from the following testimony of the witness Anderson. “Q. Did Foster and Walhood do anything else that morning that you noticed? A. Why, in the morning when I got up and said my pocketbook was gone, Foster and Walhood went out in the kitchen, and they kind of talked, they were talking kind of low. I didn’t hear what they were talking about.” Anderson did not testify that either Walhood or the defendant called the other to the kitchen or that they went to the kitchen together. The witness Brooker testified:
¶12 “Q. What was Walhood and Anderson doing when you and Leo (the defendant) got up ? A. When I got up Anderson was walking around on the dance floor looking for his purse. . . .
¶13 “Q. Did you go out before Leo did ? A. I don’t think I did. We just about finished dressing at the same time and walked out, and Walhood was in the kitchen, in what we called the kitchen. . . • .
¶14 “Q. What was Walhood doing? A. I don’t know what he was doing. I don’t know whether he was eating or-.”
¶15 The Cave was in the business of serving lunches as well as beer. The defendant, the record shows, was acting for the proprietor. It seems to me that the only reasonable inferences that may be drawn from this testimony are that the defendant went to the kitchen to see what Walhood, who had no right there, was doing, or that he went to prepare breakfast. Having gone to the kitchen, there is nothing unusual in the fact that he talked to Walhood, or that he talked to him in tones that could not be heard in another room. It is very doubtful if the witness Anderson would have heard them, had they shouted, for at the time, he, according to his own testimony, was searching the dance hall for his pocketbook. Again if it is assumed that the jury disregarded *437 Brooker’s testimony and that Anderson’s statement that Foster and Walhood went to the kitchen means that they went together, there is still no justification for any inference other than that they went into the kitchen to prepare breakfast, for someone did prepare breakfast. Anderson testified, “Q. Well, did you haye breakfast there that morning ? A. I had a little, but I couldn’t eat much.”
¶16 The other circumstances which it is claimed corroborate the accomplice, all, to some extent at least, depend upon the testimony of the accomplice himself and are not “other evidence” such as is contemplated by the statute. State v. Kent (State v. Pancoast) 5 N. D. 538, 67 N. W. 1052, 35 L.R.A. 518; State v. Coudotte, 7 N. D. 109, 72 N. W. 913, supra.
¶17 The judgment should be reversed.