dissenting. I feel compelled to disagree with the majority 'in reversing this case on an insufficiency of evidence. When the fundamental rules of appellate review are applied to this appeal, the only course open to us is affirmance of the conviction.
The evidence is circumstantial to be sure; however, direct proof of criminal conduct is lacking in a great many cases, perhaps the majority, but that should not become an ideological stumbling block to reasonable certainty. The dictum in those cases that refer to the prosecution assuming a “heavy burden” when circumstantial evidence is relied upon promotes the inference that the evidence of guilt must be greater in cases dependent on circumstantial evidence. This is not so and probably never has been, as no greater degree of certainty in proof is required where evidence is circumstantial than where it is direct, in either case it remains simply a matter of the judge or jury being convinced of the defendant’s guilt beyond a reasonable doubt. Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671 (1934), Holland v. United States, 348 U.S. 121 (1954). In Caradine, the Supreme Court of Arkansas expressed the law in connection with an appeal similar to the one now before us:
The jury evidently believed the States’ witnesses, and, if they did, they could not believe the appellant’s witnesses, and it was a question for the jury, and not for this court.
We recently said: “The testimony was entirely circumstantial, but, if believed, it was sufficient to justify the jury in finding the appellant guilty. The jury are the judges of the credibility of the witnesses and the weight to be given their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty.” O’Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976.
Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870 (1973), may be cited on the same point, where it was said that the law makes no distinction between circumstantial evidence and direct evidence from which the existence of a fact may be inferred.
In the case at bar, the trial court, sitting as the jury, presumably believed the testimony of Mr. Robert Jackson, a witness for the prosecution, and when that testimony is examined, if it is to be believed, no reasonable uncertainty of the defendant’s guilt can be entertained. Mr. Jackson’s testimony was that he had gone to the fourth floor of the department store where he was employed to take some samples, it being a Saturday when the fourth floor was closed to the public. The floor was dark except for stairway lighting and several windows around the perimeter of the building. Mr. Jackson examined an area just inside a doorway adjacent to the elevator and he observed nothing. Hearing a noise, he looked up and saw the defendant’s head disappearing through a window into an area used for storage. The room was also described as a closet area which opened onto a larger room where selected merchandise was kept for advertising purposes. Mr. Jackson went to a nearby office and called the security officer. He returned to the area and just as he arrived the defendant was emerging from the doorway just referred to. The witness asked the defendant what he was doing there and on opening the door he observed the shopping bag of merchandise immediately inside the doorway the defendant had just come through. He testified positively that the shopping bag had not been there moments earlier when he first examined the area. His testimony was that he and the defendant were the only persons on the fourth floor during the interval, which he estimated to be between three and four minutes, and that the area the defendant was seen, and emerged from, was dark. The shopping bag contained three pairs of ladies’ shoes and a man’s three-piece suit, size 39 regular.
In this own behalf, the defendant testified that he had come to the store for the purpose of seeking employment and had inadvertently gotten off on the wrong floor. He denied taking any merchandise or knowing anything about the shopping bag and he denied being in the storage area or in the room adjacent to it. His suit size he estimated at a 37 or 38 regular. Clearly, there was a considerable credibility gap between Mr. Jackson’s testimony as to the defendant’s whereabouts and the defendant’s own account, and the trial court resolved this conflict to its own satisfaction.
The majority is concerned that Mr. Jackson could not say that he saw the defendant holding the shopping bag. So be it. He did testify to a number of circumstances that point in only one direction.
(1) The defendant’s head was seen disappearing through a window in a storage area near where merchandise was kept.
(2) The area was dark.
(3) No shopping bag was seen at point A.
(4) Some three minutes later, the defendant and the shopping bag are seen at point A, the defendant emerging through the doorway, the shopping bag being just inside the doorway.
(5) No other persons were on the fourth floor except the witness and the defendant.
Giving these circumstances the “highest probative value” [Powell v. State, 213 Ark. 442, 210 S.W. 2d 909 (1948], leads to the conclusion that the conviction is founded on sufficient evidence and should not be overturned.
The rule is well settled that an appeal court does not attempt to weigh the evidence, as that is the function of the trial judge. Richards v. State, 266 Ark. 733, 585 S.W. 2d 375 (Ark. App. 1979).
Moreover, our duty on appeal is to weigh the evidence from its highest probative value in favor of the verdict. Powell v. State, supra. The reviewing court must accord every reasonable inference to support the verdict. Bone v. State, 198 Ark. 519, 129 S.W. 2d 240 (1939). When those rules are applied to this appeal, I believe the trial court had ample evidence to support the finding of guilt and I would affirm the conviction.