dissenting:
I am unable to concur in the view taken of this case by my associates, as I deem the evidence insufficient to support the verdict.
In Commonwealth v. Merrill, 14 Gray, 415, 77 Am. Dec. 336, cited in Jones v. State, 90 Ala. 628, 8 South. 383, 24 Am. St. Rep. 850, the court said: "The nature of the charge presupposes that the intent of the prisoner was not carried out. It is therefore necessary that the acts and conduct of the prisoner should be shown to be such that there can be no reasonable doubt as to the criminal intent. If these acts and conduct are equivocal, or equally consistent with the absence of the felonious intent charged in the indictment, then it is clear that they are insufficient to warrant a verdict of guilty.” See, also, Saddler v. State, 12 Tex. App. 194.
"These decisions proceed on the well-established rule in criminal cases that the proof is insufficient to warrant a verdict of guilty if the conduct of the accused is, upon a reasonable hypothesis, consistent with his innocence. If the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant’s guilt is left in uncertainty, or dependent upon conjecture or probabilities, the court should instruct the jury to acquit. The evidence should be of such character as to overcome, prima facie, the presumption of innocence.” (Jones v. State, supra.)
The intent of the defendants must be determined from their acts and conduct. (People v. Fleming, 94 Cal. 308,29 Pac. 647.)
*219In State v. Lung, 21 Nev. 215, this court, by Bigelow, J., said: "The overt act which constitutes an attempt must be one which manifests an intention to commit the crime. (Cunningham v. State, 49 Miss. 685.) A man’s intentions must be judged by his acts. In attempts, his act must have been one which, under all circumstances, manifests an intention to commit that particular offense. (1 Whart. Crim. Law, 176.) It is essential, too, that the act of endeavor should be intrinsically adapted to effect the purpose, and, that the court and the accused may see that it is so adapted, it shall be specifically stated in the indictment. (State v. Wilson, 30 Conn. 504.) * * * Whether certain facts constitute crime is not only a question of law, but one that is often intricate and difficult of solution.”
The evidence against defendants in this case is all circumstantial. To warrant the conviction of defendants, "all the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt;’ (12 Cyc. 488.) However, "no general rule can be laid down as to the quantity of circumstantial evidence which in any case will suffice.” (Cyc., supra.)
In the case of State v. Mandich, 24 Nev. 336, 343, this court, by Bonnifield, J., said: "If the circumstances, all taken together, exclude to a moral certainty every hypothesis but the single one of guilt, and establish that one beyond a reasonable doubt, they are sufficient.”
Defendants in this case testified to a state of facts which, if true, explained their presence in the mine as being devoid of criminality. The facts relied upon by the state as constituting circumstances which warranted the conclusion of criminality were not manifestly inconsistent with the innocent purpose which defendants testified was theirs in going into the mine. The testimony of the witness Altinger tended to corroborate that of the defendants themselves. As before stated, the prosecution offered no evidence in rebuttal of that offered by the defendants, but conceding, for the purposes of this case, that the jury was not impressed with the truth of *220the testimony offered by the defendants and for that reason they rejected it, nevertheless the defendants were at all times during the progress of the trial under the presumption of innocence, a presumption which the law itself very wisely imposes, and which the prosecution in every criminal ■ case is bound to overcome by evidence which shall leave in the minds of the jury no reasonable doubt of the defendant’s guilt. Where, as in this case, the evidence relied upon by the state is circumstantial, it must be such as to warrant no other reasonable deduction than the guilt of defendants. If a reasonable hypothesis, consistent with innocence, may be gathered from the evidence, a verdict of guilty ought not to be returned, and, if returned, ought to be set aside. (Black v. State, 112 Ga. 29, 37 S. E. 108.) Not that the verdict may not possibly be right, but because the liberty of a citizen is too sacred a right to be taken away when a reasonable hypothesis of innocence also exists.
The evidence shows in this case without contradiction that the defendants did not enter directly upon the property from which the indictment charged that they intended to steal, take, and carry away valuable ore, but, upon the contrary, that they went underground through a shaft upon an adjoining claim. There is no evidence showing or tending to show that the defendants or either of them knew of the underground connection between the Rosebud shaft in the O. K. Fraction claim, and that of the Rogers Syndicate shaft, in the Red King mining claim. There is no evidence in the record showing, or tending to show, that the defendants or either of them, knew of the existence of the high-grade ore upon the 300- and 400-foot levels of the Rogers Syndicate lease, testified to by the witness Rogers, unless it can be inferred as a reasonable deduction from all the circumstances of the case. A jury would not be warranted in supplying such an important fact by resorting to mere speculation. Knowledge upon the part of defendants of the existence in the mine of ore of value sufficiently high to make it physically possible for them to commit grand larceny might be inferred from other circumstances if they were of such character as to justify only the inference of a guilty intention. That the circumstances in *221this case, as detailed by the witnesses for the state, warrant only an inference of a guilty intent, is a .matter open to serious question.
The testimony shows that the defendants were trespassing upon the property of the Florence-Goldfield Mining Company and the Rogers Syndicate lease; that Thompson had in his possession two large canvas ore sacks, a small hand-pick, known as a "prospector’s pick” and a revolver. Whatever unfavorable inference might be drawn from the circumstance that Thompson was carrying a revolver was neutralized by the testimony of the constable, Claude Inman, that the defendant Thompson was himself a deputy constable, and, as such, was authorized to carry a revolver. It may be conceded that, with what is known as a prospector’s pick, one could sever from a small seam of very hard rock, such as was testified the high-grade ore was, an amount of such ore sufficient to have value enough to bring it within the limits of grand larceny; nevertheless, such a pick is not ordinarily used for such a criminal purpose, and may be, and usually is, used for the purpose indicated by its name, that of prospecting and sampling mining property. The mere fact that one was found in a mine with such an instrument upon him, even though he were a trespasser, would not ordinarily indicate a criminal intent upon the part of the possessor of the pick. If, however, there were other incriminating circumstances, it, of course, would also be a circumstance to be considered with the others, and if all, taken together, were sufficiently strong to leave no reasonable doubt of defendant’s guilt, a conviction would not be disturbed.
The two ore sacks found in the possession of the defendant Thompson, like the prospector’s pick, may be used to effectuate a criminal purpose, but, upon the other hand, they are not ordinarily so used. Their size may be regarded as a circumstance to be considered with the other circumstances in the case, and .the jury might very properly consider that smaller sacks were more generally used for sampling purposes, and such fact would be entitled to such consideration as it was worth, depending for its weight very largely upon all the other facts and circumstances in the case. So far as *222the defendant McCabe is concerned, it nowhere appears that he was possessed of anything other than a candlestick containing a part of a candle with which to assist his codefendant in the accomplishment of the alleged attempted grand larceny.
The disappearance or flight of McCabe when he heard his companion, Thompson, ordered to "throw up his hands” after the latter had climbed over the bulkhead of the drift, was a circumstance proper for the jury to consider, in connection with his explanation that he "ran because he was scared”; also the circumstance surrounding his exit from the Rosebud shaft. "The flight or concealment of the accused raises no presumption of law that he is guilty, but it is a fact which may be considered by the jury, and from which they may draw an inference, in connection with other circumstances, and in the absence of an explanation of the reasons or motives which prompted it, that he is guilty, and evidence of flight or concealment is admissible, whether the other evidence of guilt be direct or circumstantial.” (12 Cyc. 395.)
The fact that defendants were found in the mine in the early portion of the night rather than in the daytime was also a circumstance to be considered in connection with all the other circumstances of the case. In considering this circumstance, however, it should be weighed in connection with the fact that conditions of light and darkness within the mine are the same whether it be daytime or nighttime. The weight to be given to this circumstance would have to depend very largely upon its association with other facts and circumstances. For example, a person, without permission, going into a mine to examine the same for a purpose not criminal, either because of convenience or preference, might choose reasonably the evening rather than an earlier portion of the day; hence, a circumstance of this kind, like all others, should be carefully weighed in accordance with the rule governing circumstantial evidence.
It was brought out in the testimony by witnesses upon the part of the state that neither of the. defendants at the time of their arrest, or subsequently, made any statement to the arresting officers concerning their presence in the mine. *223There is nothing in the facts of this case which would warrant any inference of guilt from this circumstance. Nor is it a circumstance that could properly have been given any weight when considered by the jury together with the other circumstances in the case. There is nothing in the evidence showing that when defendants were arrested they were called upon to explain their presence in the mine, or that they were at the time charged with the offense for which they were afterwards indicted, or any other offense. Many authorities hold that a person under arrest has a right to keep silent, and that a failure to deny statements made in his presence, implicating him in the alleged crime, cannot be offered in evidence against him; that no inference against him is warranted by failure to deny the truth of such statements. (Commonwealth v. McDermott, 123 Mass. 440, 25 Am. Rep. 120; State v. Weaver, 57 Iowa, 730, 11 N. W. 675; Gardner v. State, 34 S. W. 945; State v. Epstein, 25 R. I. 131, 55 Atl. 204.)
Other authorities take a less restricted view and hold that, under certain circumstances, the fact that a person charged with crime is under arrest does not necessarily exclude testimony showing that he remained silent when incriminating statements were made in his presence. (Murphy v. State, 36 Ohio St. 628; Green v. State, 97 Tenn. 50, 36 S. W. 700; People v. Koerner, 154 N. Y. 374, 48 N. E. 730.)
In People v. Koerner, supra, the court said: "The rule in regard to admissions inferred from acquiescence in the verbal statements of others is to be applied with careful discriminations, as was said by Best, C. J., in Child v. Grace, 2 C. & P. 193: 'Really, it is most dangerous evidenced It should always be received with caution, and ought not to be admitted unless the evidence is of direct declarations of á kind which naturally call for contradiction, or some assertion made to a party with respect to his rights, in which, by silence, he acquiesces.”
In any view of the larv, it not appearing that airy statements were made in the presence of defendants, there is nothing in this case showing or tending to show that the silence of defendants, when arrested, could be regarded as an admission, nor could it be considered as a circumstance *224warranting the jury in drawing any unfavorable inference whatever.
Counsel for the state quotes from the syllabus of the case of State v. McGinnis, 6 Nev. 109, the following rule, and contends that it is applicable to the case at bar: ■ " Criminal intent can only be proven as a deduction from declarations or acts. When the acts are established, the natural and logical deduction is that defendant intended to do what he did do, and, if he offers no excuse or palliation of the acts done, such deduction becomes conclusive”
In the McGinnis case, supra, there was evidence tending to establish the facts that the defendant struck one Knox on the head with a heavy pistol, and that Knox was thereby injured. From these facts, the court very properly held that "the only natural or logical deduction as to the intention of defendant therefrom was that he intended to do what he did do, and such became conclusive when he offered no excuse or.palliation of the act done.” The crime charged was an assault with a deadly weapon with intent to inflict upon the person of another a bodily injury. The heavy pistol, whether loaded or not, when used as a club upon the person of another, was a deadly weapon. With this deadly weapon an assault was shown to have been committed and a bodily injury inflicted; manifestly, the intent to do what actually was done was the natural and legal deduction from the acts themselves.
It is a familiar rule of law that a. man is presumed to intend the natural, and probable consequences of his owla deliberate acts. This presumption goes no further. The defendants in this case unquestionably committed a trespass upon the mining property in question. Such a trespass, however, is not in itself a~crime under the statutes of this state. (Strozzi v. Wines, 24 Nev. 389.)
It does not naturally or legally follow that, because they committed a trespass, they intended to commit grand larceny. (State v. Ryan, 12 Nev. 401.) Voluntarily going upon the property of- another without permission being a trespass, the presumption would naturally follow that the defendants intended to commit such trespass, but an intent to commit a felony, to wit, grand larceny,, must be established by other *225circumstances in connection with the circumstances of the trespass, and it is not enough that these circumstances are consistent with defendants’ guilt and make it possible or even probable that such grand larceny was intended, but they must be such as to overcome the presumption of innocence, and, to be of such character, they must be inconsistent with any reasonable hypothesis of innocence.
A very careful and extended consideration which I have given to an analysis of the evidence in this case upon which the criminal intent of defendants rests raises a serious question in my mind whether, under the rule by which the sufficiency of circumstantial evidence is tested, it would justify the verdict, even though the jury had been fully instructed as to the application of the rule. The only instruction upon the question of the evidence sufficient to establish intent in this case wras the following: "The jury is instructed that in the prosecution for an attempt to commit a crime, as in any other case where the intent is material, the intent need not be proved by positive or direct evidence, but may be inferred from the conduct of the parties as shown by the evidence, and the other facts and circumstances in evidence.” The defendants in this case were entitled to an instruction to the effect that, in order to justify a conviction, the conduct of the defendants, as shown by the evidence, and the other facts and circumstances in the case, must not only be consistent wdth the hypothesis that the defendants are guilty, but must also be inconsistent with any reasonable hypothesis that they are innocent, and with every other rational hypothesis except that of guilt. In the absence of an instruction of this kind, a jury might be very apt to fail to apply to the evidence the legal rule in testing its sufficiency, and proceed to convict solely upon the theory that the evidence was consistent with guilt, and that in their judgment the probabilities were that they are guilty, and fail to properly appreciate and apply the other essential requisite of the evidence that it be inconsistent with any reasonable hypothesis of innocence.
In justice to the trial court, and as a matter of practice, it should be noted that counsel for defendants did not request the court for an instruction upon the rule in question. For *226this reason, defendants are not in a position to claim, error for the failure to give such an instruction: (State v. Hing, 16 Nev. 307.) This court has repeatedly held that, if a party desires explicit instructions to be given upon any point, it is his right and duty to prepare the same and ask the court to give them.' (State v. Smith, 10 Nev. 106; Gaudette v. Travis, 11 Nev. 149; Allison v. Hagan, 12 Nev. 38; State v. Davis, 14 Nev. 407; State v. St. Clair, 16 Nev. 207.) While error cannot be predicated upon the failure Of the court to give an instruction of the character suggested, nevertheless the absence of an instruction of so great importance in a case resting upon evidence of the character' relied on by the state serves to impress upon me in a greater- degree', if possible, the seriousness of determining in this case that, as a matter of law, the evidence is sufficient to justify the verdict.' Had an instruction of the character mentioned been requested, it would doubtless have been given, and, had it been given, the verdict of. the jury might have been very different, and I am impressed that it would have so been. Had such an instruction been refused,'it would have amounted to reversible error. I have been unable to satisfy my mind that the evidence in this case justifies the verdict, and my ultimate conclusion is to the contrary.
I appreciate fully the difficulties which usually 'beset the prosecution in securing convictions in cases of this kind, and thdt prosecutions frequently fail, although the officers feel convinced of the guilt of the- person charged. Yet it must always be borne in'mind that the safeguards, which the law throws around a person charged with crime are intended for the protection 'of the innocent. These very safeguards frequently enable the guilty to escape a just punishment, yet without them the danger would be increased of unjust convictions of the innocent. No more salutary rule exists in the criminal law than the one so frequently referred to in this opinion—that, when circumstances alone are relied upon in order to justify a conviction, they must not only be consistent with guilt, but, to overcome the presumption of innocence, they must be inconsistent with every other reasonable hypothesis except that of guilt.'' ‘ - ’ '
For the reasons given, I am of the opinion the judgments *227and orders appealed from should be reversed, and the cause remanded for a new trial, in order that additional evidence, if possible, may be adduced which will remove or tend to remove the uncertainty which I think exists from the evidence which is now disclosed by the record, and such instructions given as will enable the jury to apply to the evidence the proper legal test of its sufficiency.