dissenting. Upon review of the record compiled at the trial of this cause I am of the opinion that reasonable minds must conclude that appellant’s guilt was not established beyond a reasonable doubt. I am therefore constrained to dissent from the majority’s decision to affirm appellant’s conviction and sentence of life imprisonment.
At the outset of the opinion the majority states that its review will be confined to a determination of whether there was substantial evidence present at trial which would establish appellant’s participation in the robbery-homicide. The majority then recounts the damning testimony presented by two incarcerated felons who were convicted as accomplices to this homicide, and who, more than three years after the homicide, first came forward with information as to appellant’s alleged involvement in this crime, to be offered in exchange for a recommendation of leniency. The majority further observes that this inherently suspect and untrustworthy testimony is buttressed by the testimony of a young woman who was originally unable to identify appellant in a police line-up, but who, after some degree of encouragement by police officials, was later able to positively identify appellant in the courtroom. It is conceded by the majority that these three individuals were the only witnesses to testify that appellant actually participated in the robbery and murder of the decedent. Nevertheless, the majority concludes that the state presented substantial evidence. -
*220As his defense, appellant presented evidence tending to establish an alibi. The deputy clerk of courts for Cuyahoga County appeared as a witness for the defense, and testified that his records showed that appellant was unable to post bond on an unrelated charge, and therefore was incarcerated in the Cuyahoga County jail during the period from April -14, 1972, until the charge was dismissed on August 1, 1972. The prosecution, in fact, stipulated that the certified copy of the docket entry in the custody of the deputy clerk indicated that appellant was continuously confined for this three and one-half month period. Three fellow inmates of the Cuyahoga County jail during this pertinent period of time also testified that appellant was never absent from the cellbloek, except for occasional court appearances. Several individuals employed by the Cuyahoga County sheriff at the time of appellant’s confinement testified that each night a body count was taken, and that unless this count corresponded with records kept at the jail’s booking desk a thorough search of the cellbloek would be in order.
To overcome this evidence of alibi the prosecution introduced the testimony of two men, one of whom was certain he saw appellant on the street in Cleveland in July 1972, while the other man said he too saw appellant on the street in the summer of 1972, although he could not “remember the months and things.” In addition, the prosecution brought before the jury’s attention a number of distracting and irrelevant facts garnered primarily from newspaper articles, and having to do with, among other things, gambling and the use of drugs in the jail, a hunger strike by the inmates, and the conviction of a former jail officer for theft of certain property.
Appellant moved, pursuant to Crim. R. 29, for a judgment of acquittal at the close of the state’s case, and upon conclusion of the defense. The trial court denied both motions. It has been suggested that, in determining the sufficiency of the evidence to withstand a motion for a judgment of acquittal, the proper test is whether, after *221the evidence and all reasonable inferences that may be drawn therefrom are viewed in the light most favorable to the state, there must be some doubt in a reasonable mind as to the guilt of the accused. See State v. Hancock (1976), 48 Ohio St. 2d 147, 151-152. Similarly, the legal test for the sufficiency of alibi evidence is whether it raises a reasonable doubt of guilt. See Walters v. State (1883), 39 Ohio St. 215; State v. Childs (1968), 14 Ohio St. 2d 56. In light of the nature of appellant’s alibi evidence, vis-a-vis the evidence presented by the state in rebuttal of the alibi, there must be some doubt in a reasonable mind as to the guilt of appellant. To conclude otherwise is to argue that the average reasonable mind would be convinced that one confined in the Cuyahoga County jail could manage to escape therefrom, could travel to another county, there to commit a murder, and could later re-enter the jail facility, undetected, only to be subsequently released by an order of the court. I believe it patently apparent that such a theory is rife with reasonable doubt.
Because the prosecution’s case was insufficient to overcome appellant’s alibi defense the trial court erred in denying appellant’s motion for a judgment of acquittal. I must, therefore, respectfully dissent.
W. Brown, J., concurs in the foregoing dissenting opinion.