This is an appeal from a judgment of conviction. Appellant was charged by information with breaking and entering a barn during the nighttime of November 8, 1939, with intent to commit larceny. The barn was situated on a farm about two and one-half miles northeast of Fairfield in Camas county. In the barn were two grain bins in which was stored a considerable quantity of Turkey Red wheat. Mr. Cluer, owner of the wheat, drove out to the barn about 7 A.M. of November 9th and found that the doors had been broken open during the previous night and claims there was "a hole in the wheat," which, he estimated, represented a loss or disappearance of 75 to 100 bushels which was in the bin the evening before. After investigations by Cluer and the sheriff of the county, appellant was arrested, charged with breaking into the building in the nighttime and taking some of this wheat. Trial resulted in conviction of appellant of burglary of the first degree, with recommendation of clemency.
The principal errors assigned on this appeal are: (1) That the verdict is not sustained by the evidence; (2) that the court erred in denying defendant's motion to *Page 284 suppress certain evidence, illegally obtained by the sheriff at the time of and subsequent to appellant's arrest; (3) in permitting the sheriff to testify to certain alleged statements made by the defendant while under arrest; and (4) allowing the witness Boren to testify to certain conversations had between himself and defendant's witness Miller.
The conclusion which we have reached, as to the sufficiency of the evidence, will render it unnecessary to discuss any other specification of error.
The state called B.F. Wilson, defendant's father, who testified that the load of wheat, hauled by defendant on the night of November 8th, was taken "from the old Harvey house" which was situated on the Harvey farm; and that the grain stored in the house was his (the witness') grain and had been grown by him on the Harvey place. It is true that, on cross-examination, he said he was not present at the granary when the wheat was loaded, but he insisted that he knew it was his grain the defendant hauled on that occasion. John B. Miller, called by defendant, testified that he worked for defendant and went with defendant to load the grain, on the evening of November 8th, and that he (the witness) shoveled the grain out of the bin, at the Harvey house, into the truck.
The other evidence, except the testimony of defendant himself, was wholly circumstantial and chiefly the merest suspicion, not worthy to enter the classification of circumstantial evidence. It takes more than mere suspicion to send a man to prison, for a felony in Idaho, — there must be substantial evidence, either direct and positive, or circumstantial. Circumstantial evidence must be not only consistent and compatible with the guilt of an accused, but it must also be inconsistent with any reasonable theory of his innocence. (State v. Burke, 11 Idaho 420, 427; State v. Nesbit,4 Idaho 548, 556; State v. Seymour, 10 Idaho 699, 712; State v.Lumpkin, 31 Idaho 175, 178; State v. Marcoe, 33 Idaho 284, 286;State v. Grover, 35 Idaho 589, 597; State v. Yancey, 47 Idaho 1,4; State v. Sorensen, 37 Idaho 517, 526; State v. McLennan,40 Idaho 286, 302; State v. Dawn, 42 Idaho 210, 213; State v.Hix, 58 Idaho 730, 741.) State v. Burke, supra, is, in many respects, *Page 285 parallel with the case at bar and supports the holding herein.
In this case there was an utter lack of any substantial evidence to justify a conviction. The attempt to discredit the testimony of the state's own witness, B.F. Wilson, was unsuccessful, as was also the effort to impeach the witness Miller, by proof of extrajudicial statements contrary to his testimony in court, wholly inadequate to accomplish its intended purpose.
The judgment is reversed and the cause is remanded with direction that a new trial be granted, in case the trial judge is satisfied by the prosecuting attorney that further and additional evidence can be obtained tending to show the guilt of defendant, otherwise to dismiss the action.
Morgan and Holden, JJ., concur.