dissenting:
The late Mr. Justice Browning participatéd in the hearing of this case on appeal. Prior to its final decision, he departed this life. In the meantime, he had written and submitted to the court the following opinion:
“This appeal involves only the question of whether the evidence is sufficient to support the conviction. The petitioner assigns error to the ruling of the court on the subject of the admissibility as evidence of certain statements of the deputy sheriff relating to his impressions of the state of mind of the accused with regard to certain incidents connected with the crime charged.
“It becomes unnecessary to pass upon this assignment, as we shall have to reverse the case upon the error of the trial court in refusing to set aside the verdict of the jury as contrary to the law and evidence. The facts stated as briefly as we can are these:
“On the afternoon of Monday, March 4, 1946, the accused, a young man of about 22 years of age, with a good reputation, born and reared in the county of Goochland, Virginia, in company with his aunt, Mattie Hall, was seen driving in her car. They passed Irwin Station, going in the direction of Lickinghole Creek. A short while thereafter, he drove back from the direction of the creek, alone. Mattie Hall was about 45 years of age and lived in that vicinity. She was very fond of fishing and frequently engaged in *821that recreation. She and the accused maintained the automobile jointly, and each kept keys thereto. He had just paid for insurance on the car which he used at will. He and his aunt were on perfectly good terms. They had never had a quarrel. He said he left her at the edge of the overgrowth about 50 yards from her accustomed fishing place. On his way back he stopped at the station, drew a bucket of water from a well, putting some of it into the car, and drove to his home, whence he drove to Richmond to be in place the next morning for his work at the Southern Dairy.
“He worked in Richmond Tuesday and Wednesday, when he got a letter from a member of the family, stating that Mattie Hall had never come home. He drove to his home that night, about 35 miles from Richmond, and drove back from Richmond the next morning, and found a searching party, with the deputy sheriff, looking for Mattie Hall. Three or four hours' later the searchers found her- at the bottom of the creek, at the fishing hole near the place where accused had left her on the morning of Monday, the 4th. A fishing pole was sticking up out of the water and the hook was fastened in her sweater. The water at that place was some 9 or 10 feet deep. When she was pulled on the bank, the coroner found a stab in her neck and her skull fractured. In his opinion, she was killed, not drowned.
“Undoubtedly, the record presents evidence and incidents which were highly prejudicial to the defendant’s case and tended strongly to point to him as the destroyer of the life of his aunt. The most inculpatory of these incidents and evidence is the testmony of two small colored boys that the accused, when he went home, after leaving his aunt at the creek, asked one of them (the boys) where he was going to stay, the accused saying, Aunt Mattie ain’t coming back.’ Again, before leaving for Richmond, he said that he had let his aunt out at the covered bridge and she was going to walk home; that on Wednesday night when he drove up from Richmond and also the following morning he stated to several persons that that was the place where he left her; *822that the searchers could not find any tracks in that vicinity; that on Thursday afternoon, after the body was found he denied that Mr. Ragland, the agent at Irwin, had seen him coming back alone from the direction of the creek; that he admitted that this denial and his statements as to letting his aunt out at the covered bridge were false; that he was seen near the creek on the morning of the 4th, with an iron bar in his hand and that he was much agitated and sweating; that Mattie Hall was never seen at her home after the morning of the 4th when the accused left her near the creek; that the deputy sheriff testified that the accused seemed much more concerned about not finding the $50.00 he had given her than he was over her death. A pocketbook was found on her person, but there' was no money in it.
“The alleged significance of the testimony of the boy as to what the accused said with reference to their aunt not coming back is disproved by the fact which was revealed that he and his aunt were going to New York together on Saturday and she was to remain there to work, A letter from the accused to his mother throws light upon this otherwise inculpatory incident:
“ ‘12 East Main Street Richmd, Va.
“ ‘My Dear Mother
“ ‘Just a few lines to let you here form me I got your letter and was glad to here form you I was out home yesterday and went to fishing a wile, Mattie told me to tell you and rose that she was coming up their 8th and I am coming wif her and she told me to take the car and she ask me to gene here $50 and gave it to here she so funy you cant beleve what she say Sow I hope to see you the 8th sow give my love to all and be good
“ ‘Form you son James’
“The boy, Robert Miles, testified that he did not know whether the accused, in making the statement, ‘Aunt Mattie ain’t coming back,’ referred to her going to New York. The effect, of course, of this is to weaken the testimony. The iron rod turned out to be a jack handle which the ac*823cused said he used to prop up the hood while he was working on the old car. It is most significant that the jack handle had no blood stain on it and it was in the possession of the Commonwealth but was not introduced in the evidence. The accused testified that it was hard to get the car started when once stopped and on that account he had to prop up the hood often. The statement is made by the accused that the Commonwealth did not even claim that the jack was the instrument with which Mattie Hall was struck. This was not denied in the Commonwealth’s brief except inferentially.
“The testimony of Mrs. H. D. Ragland, the wife of the station agent, was very clear and positive. She said that she had known Mattie Hall about 25 years; that she saw her on Tuesday, March 5; that she came down the road in a car and spoke to her; that she, Mrs. Ragland, was on the station platform about 30 feet from the car; that a man was in the car and it was not the accused; that this was between 12:00 noon and 2:00 P. M., that it was not a cold day; that they were going in the direction of the creek; that she did not see Mattie Hall come back; that she thought it was her car because she was driving it; that it was a faded car; that the window was down and Mattie waved at her; that she remembered the date because her husband was in Goochland at a board of supervisors meeting and she was in charge at the Post Office.
“The Commonwealth sought to parry the effect of this testimony, so damaging to its case, by introducing a woman named Elizabeth Mealy, who said that she went to the creek fishing on Tuesday, March 5; that Mrs. Ragland was at Irwin Station when she passed around 3:00 o’clock; that she spoke to Mrs. Ragland; that Charlie Mealy was driving.
“The force of this is weakened by the fact that Mrs. Rag-land said that Mattie was driving the car when she spoke to her and waved at her.
“The Commonwealth’s case is also impaired by the fact that it seriously questioned the truth of the accused’s statement that he ever gave his Aunt Mattie the $50.00 and at the *824same time bases its claim of the great agitation and concern of the accused on account of the loss of the money. The incident is used to show that he was more troubled over this than over the death of his aunt. It considered it of sufficient importance to have the deputy sheriff testify to his impressions of the state of agitation. This, of course, would imply a deplorable baseness of character.
“The evidence is completely lacking as to showing any motive on the part of the accused for the commission of the crime. They were friendly. They had lived together for a long period and they were preparing to take a trip to New York together. He had brought her a bottle of whiskey from Richmond. All of this is antagonistic to the revolting idea of killing her.
“The Commonwealth entered the realm of conjecture to find the existence of a motive. It said that the accused and his aunt might have disagreed and quarreled about the money or the use of the car. The weakness of this, of course, is that there is no evidence to support it.
“In the case of Ferrell v. Commonwealth, 177 Va. 861, 14 S. E. (2d) 293, it was said:
“ ‘The evidence relied upon by the Commonwealth is wholly circumstantial, and no motive has been shown; but motive, or its absence, is not proof of a substantive fact, although it does strengthen the presumption of innocence.
“ ‘ “Motive not a necessity—The presence or absence of motive in cases depending wholly on circumstantial evidence is not a factor that determines either the guilt or the innocence of the accused. Proof of motive does not establish guilt, nor want of it establish innocence; but while such proof is not a necessity, it is of great importance, and the absence of motive is a factor for the consideration of the jury, but only as bearing on the question whether or not the crime was committed by the accused.” Wharton’s Criminal Evidence, 10 Ed. Vol. II, section 878. Wigmore on Evidence, section 1119.’
“It is elementary that the burden of proof is upon the *825Commonwealth. That it has not successfully met this burden is apparent. The case is enshrouded in doubt.
“In the face of the presumption of innocence which surrounds every person accused of crime, all surmise, conjecture and speculation must be discarded.”
I, too, am unable, after consideration of the record, to find sufficient evidence to show the guilt of the defendant beyond all reasonable doubt. The relations between the defendant and Mattie Hall were disclosed to be of the most friendly nature. There were no circumstances indicating any reason for the defendant to desire the death of Mattie Hall. He is obviously a young negro of very low mentality. His inculpatory statements are readily attributable to his ignorance and inexperience. It seems to me that a conclusion of his guilt can be reached only by conjecture or surmise.
I concur in the opinion of the late Mr. Justice Browning that the judgment of the trial court should be reversed for insufficiency of the evidence to support a conviction. However, I think that the judgment should be reversed and the case remanded for a new trial, if the Commonwealth be so advised.