*351Opinion on Petition for Rehearing.
Cox, J.While conceding the failure of the brief for appellant to comply with the rules in the particular pointed out in the opinion of the court, counsel for appellant earnestly insists that the brief shows a good faith endeavor to present to this court the contention that the evidence was insufficient in law and fact to sustain appellant’s conviction. Yielding to the respectful importunity now made to decide this question, we have given it full consideration. No claim is made that the evidence failed to reach that degree of certainty necessary to sustain a conviction except on the element of sexual commerce. As to this the evidence of the State was circumstantial. Appellant introduced no evidence at all, being content to rest his defense on the alleged failure of the State’s evidence in the particular stated.
3.
From the nature of the offense it is commonly impossible to produce direct proof of sexual acts between the parties, hence the rule that direct, positive proof is not essential to conviction. It is sufficient if the evidence establishes facts and circumstances from which guilt may be inferred, and which will satisfy a rational and just man beyond a reasonable doubt. 1 Ency. Evidence 628; 2 Wharton, Crim. Ev. (10th ed.) 1668; Underhill, Crim. Ev. §381. In 1 Cyc. 963, it is said: “In almost every case of adultery the fact of carnal intercourse is inferred by circumstances; but the circumstances upon which a conviction is sought must be such as would lead the guarded discretion of a reasonable and just man to the conclusion that the offense had been committed, and where the circumstances are merely incriminating, the weight of the evidence should be left to the jury.”
4.
The test of the sufficiency of circumstances which usually obtains is, that the facts which the jury accepts as proved can be reasonably accounted for on no other hypothesis than the defendant’s guilt, that with the *352theory of his guilt they are harmonious and consistent and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reasonable doubt. 2 Bishop, New Crim. Proc. (2d ed.) §§1073-1079.
It is enough to say, without reviewing the evidence in this case at length, that, measuring it by the rules stated, it warranted the jury in finding appellant guilty as charged. The facts proven without conflict in the testimony show either directly or inferentially, to the exclusion of any other reasonable conclusion, that appellant seduced the wife of another from him and his home and openly lived with her in an adulterous relation.
Petition overruled.
Note. — Reported in 103 N. E. 413; 104 N. E. 577. Generally as to circumstantial evidence, see 62 Am. Dec. 179; 97 Am. St. 771.