(dissenting). — I think the judgment should be reversed for error in the twenty-third instruction set out in the eleventh division of the foregoing opinion. It is not enough to say that this paragraph of the court’s charge will bear the construction given it by the majority, unless we can also say that no other construction prejudicial to defendant is warranted. If thé language used might reasonably have been interpreted by the jur,y, as announcing a rule of law erroneous in principle, and calculated to prejudice defendant’s case, then the instruction should he disapproved, and a new trial awarded. The first sentence of this instruction may fairly be said to announce this rule: If the character of the circumstances is such that, if true, every reasonable hypothesis of innocence is excluded, the truth or existence of such circumstances may be established by, a preponderance of evidence. That the language is susceptible of this *747meaning seems olear, and that it is the meaning most likely to be accorded it is shown by the fact that counsel for the state so construe it. This is -not a correct statement of the law. While each circumstance, when independently considered, need not be established beyond a reasonable doubt, yet when all the circumstances- are taken together, the existence of every essential one must be -shown by that degree of proof, in order to> warrant conviction. There may be but slight independent evidence of some circumstances, but, when filed into their proper-places- in the case of the state, these facts when of an essential character, must derive such support from other facts in. evidence as to make their existence clear to the exclusion of all reasonable doubt. When thus established, the circumstances, taken in combination, must not only be consistent with guilt, but they must be inconsistent with any rational theory of innocence, in order to make a case for conviction. State v. Cohen 108 Iowa, 208; Bradshaw v. State, 17 Neb. 147 (22 N. W. Rep. 361); Sumner v. State, 5 Ind. 579; Burrill Circumstantial Evidence, 136. The learned text writer just cited states the law as follows: “The party upon whom the burden of proof rests is bound to prove every single circumstance which is essential to the conclusion in the same manner and to the same extent as if the whole issue rested upon the proof of each individual and essential circumstance.” If it can be said that in other parts of the charge 6 different and correct rule is stated, it is obvious that such .a contradiction must have been calculated to mislead the jury. But I am not prepared to admit that there is anything in the instructions which tends to show that the language under consideration should not be construed as above suggested. While it is elsewhere said that the case of the state is to' he made beyond a reasonable doubt, it is-in the opening sentence of the twenty-third instruction alone that the jury is told how this may be done. Mr. Justice Ladd joins me in saying that, for the reasons given, judgment of the trial court should be reversed.