(dissenting).
I would reverse the conviction of the plaintiff in error for murder in the second degree because, in my opinion, it is not supported by the evidence.
The only proof connecting the defendant with the murder of the victim, Glen Buckner, is that a shell casing alleged to have been fired from a pistol said to have been loaned to the defendant by an informant and later found by a sheriff who, the record strongly suggests, was involved in illegal activities involving rival bootlegging factions in Claiborne County balistically matched those found at the murder scene. It would be so simple for this type of evidence to be planted that a more than reasonably hypothesis other than guilt is suggested. Under such circumstances I cannot say that guilt has been established.
This is a circumstantial evidence case and the rule is well settled that the evidence must be consistent with the guilt of the defendants and inconsistent with their innocence, and sufficiently strong to overcome every other reasonably hypothesis except that of guilt. Marie v. State, 204 Tenn. 197, 319 S.W.2d 86.
The informant, a bootlegger by the name of Hurst, told the sheriff the day after the victim’s bloodstained automobile, used in his bootlegging activities, was found abandoned that he had loaned the pistol to the defendant, a competing bootlegger. He also told the sheriff that he had test fired the pistol and the sheriff was able to locate the casing. Both the informant and the victim, Glen Buckner, had been raided by *239the sheriff earlier on the day Buckner disappeared while delivering whiskey. Both law violators met with the sheriff later that day for a “discussion” and both the sheriff and the surviving bootlegger, Hurst, pleaded the Fifth Amendment when asked about that meeting. Although from a constitutional viewpoint I cannot fault the sheriff and his bootlegging companion from hiding proof that would tend to incriminate them behind the Fifth Amendment, I cannot bring myself to accord to such witnesses that degree of trustworthiness they must have before a man should be deprived of his life or liberty on their unsupported claims that lent authenticity to the demonstrative evidence of the shell casing.
The victim’s body was found six months after he disappeared. No particular significance is found in the only other factual matter relied on by the State to connect the defendant with the crime, consisting of testimony that the accused man was observed on the side of the road about 400 yards from where the body was later found. He adequately explained his reason for being there. While appreciative of the majority’s poetic reminder that some murderers do perhaps return to the scene of their crime, I would submit that in the experiences of this Court it is to be observed that far more often the modern-day killer voids the locale of his misdeed. Far from being a circumstance suggesting guilt, to me the fact that the defendant had no reluctance to be seen near the place where the body was concealed, is suggestive more of innocence.
I would remand for a new trial.