The defendant was convicted for stealing money and goods from a storehouse.
The only one of the many grounds of objection set forth in the motion for a new trial which it is deemed necessary to notice is, that the verdict of the jury is not warranted by the evidence.
*97The deficiency in the evidence consists in not proving that anything was missed from the house, and that nothing that was in the house was traced with any reasonable certainty to the possession of the defendant. The new shoes that he had were proved to have been bought by his aunt from the same store, and the owners of the store, both being examined, did not disprove that fact. The value of no article alleged to have been stolen was proved, and there is no fact established which tended, with any reasonable certainty, to show that the defendant was at the store at the time it was entered by the thief. It is not sufficient that that fact was rendered probable only by his association and intimacy with another person whose hat was found in the store, even if it had been established without doubt that the hat belonged to such other person. It was not shown that two persons entered the house, or were near it, but one person having been seen escaping from the house.
To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof tending to establish that the party charged was the person who committed it or was a participant in its commission to a degree of certainty greater than a mere probability or strong suspicion. There must be legal and competent evidence pertinently' identifying the defendant with the transaction constituting the offense charged against him. It is the duty of the court to require that such legal and competent evidence shall be adduced on the trial in order to sustain a verdict of guilty.
This is plainly deducible from our code, which prescribes as one of the grounds of new trial that ‘‘the verdict is contrary to the law and evidence,” (Paschal’s Dig., art. 3137,) and also that “the Supreme Court may revise the judgment in a criminal action as well upon the law as upon the facts, but when a cause is reversed for the reason that the verdict is contrary to the weight of evidence the same shall in all eases be remanded for a new trial.” (Paschal’s Dig,, art. 3210,)
*98These provisions impose upon the District Court in the first instance and afterwards on this court the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence as would render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should "be sufficient to rebut the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense.
We are of opinion that there was not sufficient evidence in this case to warrant the verdict of the jury.
Reversed and remanded.