(dissenting).
In this ease John Loehr, Tony Loehr, and Albert Warner were jointly indicted on four counts: (1) For conducting a still manufacturing whisky; (2) possession of equipment designed and intended for the manufacture of intoxicating liquor; (3) possession of intoxicating liquor; (4) maintaining a nuisance.
To all four counts of this indictment John Loehr pleaded guilty and was sentenced. Tony Loehr and Albert Warner went on trial .and were convicted, as follows: Tony Loefir on counts 2 and 4, Albert Warner on all counts, and these defendants appealed. This court on the appeal reversed the conviction as to both defendants for want of sufficient evidence to sustain the convictions. After this opinion was handed down, the government filed a petition for a rehearing in which counsel for the government frankly admitted while *702they had theretofore urged the upholding of the convictions as to both defendants there was in truth no sufficient evidence to uphold the conviction of Tony Loehr and that the reversal of the judgment as to him was proper and correct, but still insisted the record contained evidence sufficient to uphold .the conviction as to defendant Warner. When the ease as to him came on for rehearing, no new briefs were filed and argument thereon was waived and the case as to Warner was resubmitted for decision, and a majority of ’ this court as constituted have prepared an opinion sustaining the conviction as to Warner. As to this opinion I must say I do not like it and do not agree with it. To my mind the liberty of the citizen is too dear and his good name too sacred to be taken away by any such flimsy evidence as is found contained in the record before us. While I do not doubt that some, perhaps many of our people, who fill our penitentiaries and jails to overflowing have been convicted on evidence no more persuasive than we find in this record, yet I do not believe in any such practice as obtains in such eases, whether for the purpose of enforcing the prohibitory law of our country or any other criminal law. The safety of the citizen should be the supreme law, and before that is taken away courts should require a proper observance of the rules of evidence and a proper consideration of the constitutional rights and safeguards thrown by the law around our citizens, for in so doing, and no other, lies not only the safety of our citizens but the safety of our country as well.
Coming now to an examination of this ease and the charges preferred against defendant on which he was tried and stands convicted, and what do we find? That John Loehr owned the farm on which the still in this case was located and the building in which the still was placed. That he was therefore in possession of the still and the goods about to be manufactured into whisky. He admitted this and pleaded guilty. The defendant, a young man, testified he was working for John Loehr, for $3 per day, ploughing. Presumably, therefore, he was a common laborer and had no means, if he had the opportunity, to possess any still or anything in connection with the still. Had he purchased any materials for use in the manufacture of whisky or hauled any such materials out to the Loehr farm, it would have been susceptible of easy proof. How, under all the evidence in this case, was it possible for him to be convicted of the possession of anything or of maintaining a nuisance, as he was? The property and premises where the still was located was the property of Loehr. He was in possession as he says he was, not Warner. Hence all the charges of possession on which Warner was convicted without a scintilla of evidence must go for nothing. The only possible contention, under the evidence in this case, as to defendant’s guilt, rests in the fact that enforcement officers found Warner there on the premises in John Loehr’s absence, and from this fact the government assumes he was there employed by Loehr to operate the whisky making apparatus. But even should this have been proven, which, as will be seen, it was not, this would tend only to convict defendant under count 1 in the indictment, whereas he stands now under the opinion of a majority of this court convicted on all four counts in the indictment, on three of which there is no contention by any one there is sufficient evidence to convict. Is this as it should be? Is this a proper enforcement of the criminal laws of our country?
Coming now to the evidence tending to prove defendant’s guilt under count 1 of the indictment, and what do we find? There is absolutely no direct or positive evidence. The sole reliance of the government is, and must rest upon, mere circumstantial evidence. This is admitted by the writer of the now prevailing opinion in this ease in a memorandum he wrote in favor of granting a rehearing in this ease, a part of the record in this ease, but is not admitted in the majority opinion as now written. And how does he attempt to justify the fact that the circumstantial evidence found in the record is sufficient to support the conviction ?• On the thought that, to his mind, the circumstances in evidence, when compared, tend more strongly to sustain the guilt than the innocence of defendant. As this position must depend more upon the east of mind than upon the circumstances themselves, I had not thought such a view of a ease could be taken. I had thought the rule to be, before circumstantial evidence proved anything, this evidence must arise to such dignity of proof as to exclude any and every other reasonable hypothesis than the guilt of the accused. I had thought this theory of circumstantial evidence was simple hornbook law, not needing any authority in its support. If it does, the books are full of eases laying down this rule, that circumstantial evidence which fails to arise to this high degree of proof is no evidence at all, proves nothing.
Such, to my mind, is the law and the rule to be at all times applied or the presumption *703of innocence with which a defendant stands before the bar of justice clothed by the law is not overcome. Who can say, who does say, in this ease, the evidence in this case arises to such dignity as to exclude every other reasonable theory than the guilt of defendant?
In many cases very similar to this in point of fact, based on circumstantial evidence, the evidence in this case, or even stronger circumstantial evidence, has been held not sufficient to uphold conviction. In Graceffo v. United States, 46 F.(2d) 852, a ease very similar to this in point of fact, the Court of Appeals, Third Circuit, held the evidence of a defendant’s presence at a still at a given time would not justify a presumption of his possession o£ the still, liquor there found, or of his part in operating a still. That ease, I think, lays down the proper rule. See, also, opinion of that great jurist, Judge San-born, in Salinger v. United States (C. C. A.) 23 F.(2d) 48. In no case do I find it is within the province of a trial judge to overrule a motion for a directed verdiet, or a reviewing court to sustain a conviction by a comparison of the circumstantial facts in evidence, one circumstance with another, and upholding a conviction because to the mind of the court or judge so analyzing the facts they tend more strongly to prove the guilt of defendant than his innocence. Not only do I find no such warrant of law in any adjudicated ease, hut am confident no such authority can be found. Regarded under the true and safe rule of considering a case based solely on circumstantial evidence, there is in this ease no evidence of the guilt of Warner under count 1 of the indictment, and not even a pretense of his guilt under the other three counts, and he should go acquit.