The District Attorney in behalf of the State has filed a courteous but vigorous motion asking us to again review the evidence and insisting that we reached an erroneous conclusion in holding the evidence insufficient. The attorney for appellant has filed a reply argument in which he is equally insistent that we correctly decided the case originally. In the light of these circumstances we have again carefully reexamined the evidence. One of the State's witnesses says there was a blood stain on the screen, and several speak of a stain or smear of blood on the wall near the window. The evidence without which the State could not hope to sustain a conviction is that regarding the checks found in appellant's bill fold. The pertinent evidence about them centers about a $400.00 check. Mr. Henderson, the party alleged to have had control of the building and property testified as follows: "I don't know whether there was anything missing out of the City Hall that had been there the night before. * * * I remember seeing a check for $400.00 by Drs. Smith and Smith at some time. I had been working there at that time since the 15th of March. Yes, sir, I worked some there before Mr. Duncan went off on his trip." If the evidence was certain that the $400.00 check was in the building at the time of the burglary, finding it in appellant's pocket immediately afterwards would relieve the case of uncertainty. But Henderson is not sure when he saw it there. He says, "at some time." It is thus left uncertain whether it was after appellant had quit working for his father trying to collect the old checks, or whether it was before appellant's father had gone away, at which latter time said check with others might have come into the innocent possession of appellant in the course of his efforts to collect the old checks.
The evidence may raise a strong suspicion of appellant's guilt, but after again reviewing it we think it does not measure up to the demand of the law of circumstantial evidence.
The State's motion for rehearing is overruled. *Page 231