(concurring). This case is now before the court under rehearing. As presented on - original submission, a part only of the matters now urged upon our attention by counsel for appellant were argued and relied upon for reversal. The principal matters of contention for error were three — the refusal of the court to give an instruction as *280requested; error in the fifth instruction given, and the refusal of the court to grant a new trial because of the insufficiency of the evidence to support the verdict. In the request, defendant asked .that the jury be told that, “ to warrant a conviction on circumstantial evidence, each fact in the chain of circumstances necessary to be established . . . must be proven beyond a reasonable doubt,” etc.' In the majority opinion filed on that submission, we held in substance that inasmuch as the trial court in the course of the charge had .taken up separately and explained each constituent fact element of the crime necessary to be proven, and had in connection with each of such elements impressed upon the jury that the same must be proven beyond a reasonable doubt, the error in refusing the request, if such it was, was without prejudice. While confessedly the case of the State rested wholly on circumstantial evidence,-in the fifth instruction a definition in the abstract of direct evidence was also included. And the opinion held that such could not have been prejudicial, especially in view of the other instructions 'given. On the matter of the sufficiency of the evidence to warrant a verdict, the opinion expressed the affirmative view. On the subject of such former opinion I care only to add that I adhere to the views therein expressed.
Coming, now to the present opinion prepared by the Chief Justice, based largely on argument submitted on the rehearing for the first time, I agree that upon some, at least, of the grounds discussed, and for reasons as stated, the judgment should be reversed, and the case go back for a new trial.