(dissenting).
Proof of a defendant’s momentary presence in the vicinity of a still, without more, is not enough to take the case to the jury. It is not enough because the relation between the proven fact and the inference the prosecution would have the jury draw is extremely tenuous. Bare proof of momentary presence in the vicinity leaves open many other possible inferences.
*267Here the proof shows much more than the defendants’ momentary presence in the vicinity. It discloses a web of circumstances which, I think, would justify reasonable jurors in concluding beyond reasonable doubt that the defendants were operating the still.
There was direct proof that the still was operated that day. When the officers inspected the still late in the afternoon they observed the product of the run, spent mash, a wood fire still burning under the boiler and “shakers” still coming from the worm.
The defendants were seen entering the woods early in the morning. They were proceeding in the direction of the still along an old woods road from which a path led the short distance into the still yard. Late in the afternoon, Walter Freeman was seen emerging from the woods by this same woods road where he was then picked up by an automobile driven by Russell. They were several miles from their homes, and more than eleven hours elapsed between their entry into the woods shortly after 7:30 in the morning and their departure from the area at 6:55 that evening.
From their observation point the officers could not see the still path leading from the old woods road. In the early evening they examined the path, however, and found fresh footprints along it from the woods road to the still site. They found no evidence of any recent travel along the woods road beyond the still path. Shortly after these defendants entered the woods, the officers heard sounds of breaking wood1 and other sounds which they related to the operation of the still. The sounds came from the direction of the still and were heard intermittently during the morning and the afternoon.
Far from a momentary presence in the vicinity, the testimony, which the jury might have accepted, shows that the defendants entered the woods going toward the still early in the morning. The evidence on the ground indicates they walked to the still site, not to some other place in the woods. Sounds which the jury could have found were those of preparation for the still’s operation began to be heard shortly after the defendants were seen walking toward the still. They were seen leaving the area after the still’s run was completed.
These primary observations of the witnesses were. lent significance by other circumstances.
The “public road” between Mt. Lebanon Church and Overton’s store, a distance of approximately a mile and a half, is a small unimproved dirt road. There was no house on it. On either side of it, totally uninhabited woods extend for miles. The witnesses’ knew of no business being conducted by anyone in these woods. There was no mine, no quarry, no lumbering operation. The evidence discloses no scenic, or other, attraction in these woods.
It was a rainy day, making the task of tracking the defendants relatively easy and foreclosing any inference that they may have been whiling away a lazy, sunny day.
The defendants, then, were not visiting friends, for no one lived in these woods. They were not working at a mine, quarry, or saw mill, for there were none. They were not equipped with the fishing rods or poles of fishermen, with the guns or dogs of hunters or with a surveyor’s level and rod. Other purposes which lead men to spend a long, rainy day in uninhabited woods come to mind, but they require tools and equipment these men did not possess. The still, however, was fully equipped for operation; the mash was ready and the wood for the fire needed only to be broken.
I think the evidence not only justifies the inference that these men were at the still site while the still was in operation, but that it substantially forecloses every other possible inference.
*268There was a second path into the still site which, that evening, also showed fresh signs of use. It is possible that others than these two appellants and their third co-defendant may have used that path that day and participated in the operation of the still. That possibility, however, does not obliterate the tracks on the first path into the still site or defeat the inference that the defendants were participants in the still’s operation.
Crediting circumstantial evidence with the force to which I think it is entitled, I would affirm.
. Wood was used to fire the boiler.