(dissenting):
I cannot concur in the majority opinion. I do not believe that any man should be convicted of any crime when the government proves only suspicion and circumstances and totally fails to properly prove identification of those persons charged.
*502With all due respect to the majority’s experienced judgment, the record fails to show in any way the essential identification of the three defendants with the crime charged. Individual identification of each of the three defendants is necessary, but totally lacking. Mass identity is even obscured by the government’s proof. The law asks very little in requiring the government to properly prove a case when the ultimate consequence may be to deprive a man of his life or liberty. Courts should not be willing to allow convictions where inferences are derived from facts only suspicioned and not proved. Regardless how zealous we are to have good communities and proper criminal law enforcement, we have contracted with the rule of law that all men are presumed to be innocent until proven by competent evidence to be otherwise. The basic rights of all free men depend upon this principle. Each of the defendants has pleaded not guilty. Each of them must be proven to have participated in the crime charged. Unexplained presence in the vicinity of a burglarized bank is not enough.
The majority opinion reflects that the appellants were identified by five witnesses from midnight to around 3:00 a. m. the night of the burglary. I respectfully submit the record not only does not justify this conclusion but totally absent is any competent identification whatsoever. Witnesses called by the state and their evidence are as follows:
EDDIE JOE LAWRENCE. Age 18. He was sitting at a DX station across the street from the bank at approximately 1:00 a. m. with four other boys. He stated he saw a dark Chevrolet pickup “with red sideboards” pass up and down the main street of Ola. At no time did he identify the appellants or even state how many persons, if more than one, were in the pickup.
EDWARD ISOM. He was the Mayor of Ola, who was returning from a night of fox hunting at approximately 1:10 a. m. He saw an old pickup with “red sideboards” at the Y intersection of highways 10 and 7, approximately five blocks from the bank. At no time did he identify the people in the pickup or even state how many persons, if more than one, were there. At no time did he identify the appellants.
DR. JAMES PENNINGTON. Coming home from the hospital at 1:00 a. m. on the same night of the burglary he saw an old pickup with red sideboards. He said he saw it a distance of 100 yards in his rear view mirror. Later he saw the lights of “some kind of vehicle” near the bank when he was several blocks away. Obviously, at no time did he identify the appellants.
WILLIAM C. BAKER. Age 18. He was sitting at the Esso station across the street near the bank. He testified that he noticed a pickup truck, dark green or black, go by the main street twice at about 12:30 or 1:00 a. m. At no time did he identify the appellants.
HERBERT M. LAWRENCE. Age 17. He was at the DX station with Eddie Joe Lawrence at approximately 12:30 or 1:00 a. m. He saw a dark pickup twice that night. It had sideboards but he did not notice what color. He said he also saw Ed Isom’s pickup. At no time did he identify the appellants.
OTT ROSE. He was the Deputy Sheriff. He was aroused by the witness Floyd around 2:00 a. m. and drove downtown. He shined his lights between the DX station and the cafe across the street from the bank. He claims to have heard a shot while pursuing three unknown persons. After this chase he returned to a parked pickup and upon opening the door discovered the appellant Ussery lying down inside. There was a gun on the seat. Rose then arrested Ussery. The Deputy Sheriff did not examine the gun at that time to see whether it had been fired. The next day the gun was examined and one chamber was empty. At daybreak he discovered appellants McClard and Simmons one and one-half miles outside of town on the highway. It was shown that they both had possession of loaded guns. The first time Rose identified any of the appellants was up*503on arrest. There is no evidence that he recognized them as the ones being chased. This leaves only one witness wpon whom the state must rest its case of identification.
GLENN FLOYD. At approximately 12:30 or 1:00 a. m. he came into town to look for Dr. Pennington. He saw a dark green pickup parked at the car wash with its hood up. He thought it was some of his “coon hunting buddies.” He approached the pickup and observed three persons in it. He could only identify two of them at the trial, and in this regard the following is what the record reflects to be the government’s proof of identity:
“Q. Did you see who was inside?
“A. I seen two of the fellows good, but the other one I didn’t see real good, I saw him, but I didn’t see him real good.
“Q. Could you identify them?
“A. Yes, sir.
“Q. Could you identify them now, in the Courtroom?
“A. Yes, sir.
“Q. Will you do so?
“A. The two guys sitting right there, the big one was setting on the outside and the other in the middle.
“Q. Which one was in the middle?
“A. The one on the right.
“Q. You couldn’t see who was driving?
“A. No, sir, I didn’t get a good look at him.”
From this testimony we can only assume that the witness identified two of three defendants as occupying the pickup truck. It was either Ussery and Me-Clard, or Ussery and Simmons, or perhaps it was MeClard and Simmons.
In oral argument the government admitted it had failed to properly identify the two persons pointed out by Floyd in the courtroom as being seen at 12:30 in a pickup parked at a car wash. However, the government suggested the two identified were MeClard and Simmons. The government states that appellants’ counsel, Mrs. Weid, implied as much in oral argument. I know of no rule which allows counsel for the parties to even stipulate to incriminating facts on appeal which are otherwise omitted in proof below. If further appeal is taken, or post conviction proceedings are instituted, what record is available of such oral admissions? No authority is offered to show the right of counsel to stipulate to facts in a case where the evidence might otherwise be insufficient to incriminate or convict the accused. The record must be properly presented. We do not sit as “citadels of technicality” when we require proper identifications in criminal cases. Due process demands it! When multiple parties are tried together, partial identification cannot convict all defendants. To allow this suggests that a joint indictment of co-defendants permits conviction of both upon proof of the guilt of only one. See Butler v. United States, 317 F.2d 249, 254, 6 A.L.R. 3d 582 (8 Cir. 1963), where we said:
“The authorities dealing with the general subject of identification of the accused, and particularly with the quantum and quality of proof required to establish this element of a criminal case, uniformly hold that proof of the identity of the person toho committed the offense is essential to a conviction.” (Emphasis ours.)
See also Dawes v. United States, 177 F.2d 255 (6 Cir. 1949); Thompson v. State, 115 Ga.App. 28, 153 S.E.2d 632, 633 (1967), and cases collected in 23 C.J.S. Criminal Law § 920, p. 643.1
*504Mr. Floyd stated that at approximately 1:30 to 2:00 a. m. he saw two persons get out from the same pickup he observed earlier. He could not identify the persons who got out. They were in front of the bank. They first “fooled around a window” of the bank. They then came around to the bank door and then according to him:
“A. I couldn’t tell what they were doing, just messing with the door.
“Q. Messing with the door?
“A. Yes.
**-»*-»*
“Q. Could you tell, Mr. Floyd, whether they were touching the door?
“A. I couldn’t tell that; they were just at the door fooling around, you know.
“Q. How far away were you ?
“A. I was a half a block, I guess, something like that.”
They then drove away in the pickup. Floyd stated he waited until an hour or so, supposedly to call Dr. Pennington, and then this same pickup drove up and one unidentified person got out and went between the DX station and the cafe. These buildings are both across the street from the bank. The pickup went around the block and then dropped off another person. It was at this time that Floyd went to get the Deputy Sheriff. When they came back they turned their headlights on two persons between the DX station and the cafe. Floyd did not hear a gun go off. The Deputy Sheriff said he shot his and heard another. After the chase, they went back to the parked pickup and found Ussery lying down in the front seat.
I submit the above constitutes a complete summary of the total evidence on identification of the appellants prior to their arrests.
If we assume Floyd made a proper identification of McClard and Simmons earlier in the evening at the car wash, the fact remains he did not identify the third person driving. This was approximately 12:30. (It is an interesting observation that Floyd confused this pickup with one owned by some fellow coon hunters. He drove a pickup. The Mayor had one. There were several in the area).
Defendants may well be guilty. My complaint is that the evidence offered did not prove it. It is far better that the guilty go free than to condone conviction of any man on suspicion alone. I think it is important to consider the evidence on the basis of the proven individual participation in the crime alleged:
McCLARD. The government conceded in oral argument that the only evidence of guilt of McClard is that he was found with Simmons the next day with a loaded gun. There is no evidence McClard was near the bank on the night in question. Assuming Simmons was proven guilty by competent evidence, is the presence with him of McClard the following day sufficient to convict Mc-Clard? No commentary is necessary to condemn “guilt by association.” It is not a rule of law recognized under American justice. The law is that, “In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” See Learned Hand, J., in United States v. Peoni, 100 F.2d 401, 402 (2 Cir. 1938), as cited with approval by *505the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). See also Diaz-Rosendo v. United States, 364 F.2d 941 (9 Cir. 1966). The latter case, a narcotics smuggling case, also remonstrates that, “Guilt cannot be established by mere association.” 364 F.2d at 944. See United States v. Di Re, 332 U.S. 581 at 593, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Garguilo, 310 F.2d 249, 253-254 (2 Cir. 1962).2
Notwithstanding the prejudice to the jury, the possession by McClard and Simmons of guns, hardly tends to prove that they committed burglary the night before.3 Cf. Moody v. United States, 376 F.2d 525 (9 Cir. 1967). Assume the witness Floyd made proper identification, and McClard was seen with Simmons parked in the pickup at the car wash about 12:30 a. m. Later that morning two unidentified men were seen getting out and back into the same pickup near the bank. If we infer, which we must, that McClard was one of the two, do we not have to infer he assisted in the break-in? Is this not an inference upon an inference? We cannot infer from a probatice fact not proven.4 Again, one hour or so later three unidentified men were seen near the DX station and cafe and Post Office by the Deputy Sheriff. Floyd saw only two. Again through the processes of inductive reasoning, we are asked to conclude that McClard was one of those men. But what evidence is there that he assisted anyone in burglarizing the bank? All these factors make one suspicious of McClard. But a criminal conviction cannot rest even upon probability let alone suspicion and speculation.
USSERY. He was found lying down in the pickup which earlier was allegedly occupied by McClard and Simmons and a third person. Is it a reasonable inference that he was that third person? If we assume he was, where does this lead to? Can we further assume he was in the pickup when the two unidentified men got out in front of the bank ? What if he were? What did the two men do? What did he do? It was lighted up all around the bank. Several boys were together across the street. No tools were seen or described in the hands of the two near the bank. They were “messing around” by the door and window. Whenever this may have been, they were not observed in any way touching the door. At the same time several boys were “fooling around” near the DX or Dairy Queen. What does that prove? True, the bank was burglarized, but assuredly not at this time. The men got back into the pickup and left. They did not enter the bank. Does mere presence of two unidentified men in front of the bank establish guilt of this defendant?
See Coleman v. United States, 113 U.S. App.D.C. 144, 306 F.2d 751 (1962). There, the defendant was convicted along with a co-defendant of housebreaking as *506defined in 22 D.C. Code § 1801 (1961). The Circuit Court affirmed conviction of the co-defendant in a separate case, there noting that the evidence was sufficient for that conviction (Britton v. United States, 112 U.S.App.D.C. 207, 301 F.2d 531 (1962)). In the Coleman case, however, the conviction was reversed, with the court saying:
‘The co-defendant Britton, whose conviction we have affirmed, was shown to have been in the building where the housebreaking occurred, but the evidence failed to bring home to this appellant either that he aided and abetted Britton by acting as ‘look-out’ or that he participated in any actual breaking or entering of the building, essential elements of the offense charged. By using a police dog to follow a scent appellant was located near the scene, but neither the evidence to that effect, nor other evidence, placed him at any time in the building or established that he had collaborated with Britton in the crime itself.
“The jury were not warranted in finding appellant guilty beyond a reasonable doubt.”
As was stated in United States ex rel. Argento v. Jacobs, 176 F.Supp. 877, 883 (N.D.Ohio 1959):
“The mere fact that a person is seen in the vicinity of the commission of a crime is not sufficient evidence of his complicity in said crime.”
Ussery was never identified until he was found in the truck. Assuming probable cause for the arrest of Ussery for investigation, this does not prove burglary of the bank. He was found in suspicious circumstances, which he has no burden to try to explain. He has no burden to prove that he was not one that was being chased. If we can infer that he was, does this prove guilt ? Guilt of what? Contrary to the majority opinion, they were never seen running away from the “area of the bank.” But if they were, flight is but the weakest of evidence, unless the facts are known as to the motive of the accused which prompts it. See Vick v. United States, 216 F.2d 228 (5 Cir. 1954), and of course, Hickory v. United States, 160 U.S. 408,16 S.Ct. 327, 40 L.Ed. 474 (1896); Alberty v. United States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051 (1896); and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). What makes the evidence more tenuous in the present surroundings is that there is no proof in the present case that any of the three appellants were the ones being chased. And it is extremely doubtful at the time of the chase that any crime had been committed by anyone. The bank had been under continued observation by the witness Floyd except for a brief period of time and he did not see anyone at any time enter by the front door.
Ussery may have been guilty of other crimes; but he was charged with burglary and the government must prove it. True, he had a gun, he was found in a truck with a fictitious license plate, shortly after three men were being suspiciously pursued for questioning. But what is shown as to his guilt of the crime charged? His association? And if so, with whom — McClard ? What proof of association ? What did McClard do ? Perhaps his alleged association with Simmons? But what proof of association? And if so, what did Simmons do?
SIMMONS. The case relating to Simmons must rely upon the singular proof by the FBI of the comparison of footprints made from tracks in the insurance office and prints taken from Simmons’ boots after arrest. There is no doubt of the admissibility of the prints. However, these prints are again the weakest kind of evidence. They do not stand side by side with the identifying characteristics of fingerprints or blood type. The government’s testimony reflects only that in the opinion of the FBI agent the bootprints from Simmons’ boots are of “the same size and design and had the same wear texture of the *507right.” Similar tracks of shoes worn by an accused cannot stand alone to substantiate sufficient proof of guilt in a criminal trial.5
In this regard, the case of Warren v. State, 52 Tex.Cr.R. 218, 106 S.W. 132, 133 (1907) contains the following analysis:
“It would be a dangerous precedent, however, guilty this appellant may be, for this court to lay down a rule'holding that tracks alone, plus a presence within two miles of the scene of a crime, would justify a court in affirming a case. The tracks show that the party making same had on a pair of shoes that had been half soled. The heels of one of the shoes making the tracks was run down and worn off, several tacks were prominent, or several indentations in the tracks appeared to have been made by prominent tacks. These peculiarities are shown to have existed in appellant’s shoes. But * * * [i]t is too well known that shoes are frequently half soled, and it is equally well known that tacks are often prominent therein. It is further a commonly known fact that heels of shoes are often run down or worn off.
“These being matters of common notoriety and knowledge * * *. So believing, we reverse this case because the evidence is insufficient to support the verdict.” 106 S.W. 133.
See also e. g., Harris v. State, 163 Tex. Cr.R. 519, 294 S.W.2d 123 (1956); State v. Murphy, 356 Mo. 110, 201 S.W.2d 280 (en banc 1947); Ennox v. State, 130 Tex.Cr.R. 328, 94 S.W.2d 473, 475-476 (1936); Harding v. State, 122 Neb. 766, 241 N.W. 526, 527 (1932).
What other proof of guilt is there concerning Simmons ? None exists of which I know.
*508In summary, it is my opinion that the evidence falls far short of proof that Ussery, McClard or Simmons individually or collectively burglarized the Ola bank. Various burglary tools were found by the authorities inside the bank. Water was allegedly taken in glass jars from a refrigerator, yet no fingerprints of any of the accused were offered from the tools or the glass. Only inconclusive bootprints were presented.
It is not the province of this court to weigh the evidence and thereby determine guilt or innocence. Ordinarily, questions of identification of the accused are left to the jury to determine from all the facts and circumstances submitted. However, the courts must exercise their responsibility to review the sufficiency of the government’s evidence, when it attempts to weave mere suspicious circumstances into a web of guilt. We do not encroach upon the function of the jury by setting aside convictions premised on speculative inferences. Nor can the fact that there exists more than one speculative inference satisfy the quantum of proof necessary to convict a defendant in a criminal trial.
Since Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), federal courts are no longer required to give separate instructions concerning circumstantial evidence. 348 U. S. at 139-140, 75 S.Ct. 127. The teaching of that case is that the commonly accepted burden of the government where proof is based upon circumstantial evidence is no different from its burden in cases where there is testimonial evidence. Thus, the rule that the burden of the government requires exclusion of every reasonable hypothesis but that of guilt is no longer acceptable. Other circuits have since adopted new standards of weighing circumstantial proof to determine its sufficiency to sustain conviction.6 Some still adhere to the pre-Hol-*509land rule, apparently by distinguishing the Holland case as applying only to jury instructions given by the trial court.7
In Gregory v. United States, 365 F.2d 203, 205 (8 Cir. 1966), we pointed out that there is no separate rule for circumstantial evidence,8 and affirmed a conviction on the grounds that substantial evidence tending to prove guilt beyond a reasonable doubt was introduced. It would appear that we have adopted the rule in conformity with the majority of other circuits that where reasonable minds can find substantial evidence on each element of the offense tending to show the accused to be guilty beyond a reasonable doubt, courts should sustain a conviction.
In the present case, taking all of the facts and circumstances together, I do not feel there exists sufficient evidence to sustain a finding of guilt beyond a reasonable doubt of any or all of the defendants.
Perhaps one or all of the defendants are guilty. I do not know. On this record, I can only speculate. If they are guilty, I certainly do not know when these defendants burglarized the bank. Perhaps it was done after Ussery was arrested, by the other two appellants. In any event, it was not proven. Until emotional distrust becomes the substitute for the rule of law, the presumption of innocence of every person shall persist; mere association or group identification shall not be competent evidence of guilt; and the failure of any man to take the witness stand shall not prejudice him in any way.9 Today many laymen feel these rules offer too great a protection for the guilty. However, it is the tested experience of the law that this constitutes a negligible price exchanged for the protection of the rights of the innocent man everywhere.
I would reverse and remand for a direction of acquittal of each defendant.
. In Alexander v. State, 164 Tex.Cr.R. 663, 302 S.W.2d 414 (1957), a woman who lived in a second story apartment over a drug store stated that during the afternoon of August 5 she saw a 1956 Chevrolet convertible drive up to the drug store and the appellant and another man and a woman go inside. The next morning at 1:30 a. m. she identified the same 1956 Chevrolet being driven in a “suspicious” manner in front of the drug store. She saw the appellant get out of the car, walk over to the door of the drug store and heard the door rattle. Later *504the car drove away with two men and a woman in it. On cross examination:
“ * * * [S]he was unable to say whether there were two men and one woman or two women and one man in the automobile that night, ‘all I could see was three persons,’ that she could not tell whether any of the persons was wearing glasses, that the man who crossed the street to the drug store ‘looked like’ the appellant but that she could not see well enough ‘to state positively who any of those people were,' that she could not positively identify the appellant ‘as being there,’ that she did not know under all the circumstances whether the appellant ‘was there on that occasion or not.’ ” 302 S.W.2d at 415-416.
The identification was held insufficient.
. Judge Friendly states at 310 F.2d 254:
“Never were the jurors told in plain words that mere presence and guilty knowledge on the part of Macchia would not suffice unless they were also convinced beyond a reasonable doubt that Macchia was doing something to forward the crime — that he was a participant rather than merely a knowing spectator.”
The case was remanded for a new trial of Macchia.
. In Wood v. United States, 342 F.2d 708 (8 Cir. 1965), a conviction of larceny from interstate carrier was reversed for insufficiency. Judge Ridge stated in the course of the opinion that, “ * * * it is axiomatic that sufficiency of the evidence in every criminal case, to sustain a conviction, must be judged with respect to proof of the offense actually alleged in the indictment.” 342 F.2d 712.
. “Inferences must be based upon proven facts or facts of which judicial notice must be taken and one inference cannot be based upon another inference. To sustain a finding of fact the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion.” Wesson v. United States, 172 F.2d 931, 933 (8 Cir. 1949).
. The government witness admitted that shoe wear is a good deal like wear and tear on a tire and that he “possibly could not tell” the difference between a boot-print by a similar shoe with those taken from the floor of the insurance company. The government attempted to point out distinguishing marks of wear made from Simmons’ boots which correspond to the same marks on the prints. However, cursory examination discloses that the overlay print from Simmons’ boot cannot possibly be the same shoe which made the print photographed in Exhibit 26. Examination shows that the back four lugs of the overlay cannot possibly fit on the lift in question. The indistinc-tiveness of the lift cannot account for a different size boot. The heel print qn the overlay of Exhibit 25 hardly fitq within any distinctive pattern of the print itself. Any number of heels could fit the same general shape of the print in Exhibit 25. The same could be said of the overlay on Exhibit 23. On Exhibit 23 no attempt is made to explain the obvious heel mark made by a different shoe. One can only surmise it was made by another “burglar” or perhaps an innocent third person. Assuredly, the boots of McClard and Ussery were within similar constructive custody of the government for examination. Exhibit 24 has an overlay upon which the government demonstrates distinguishing characteristics of Simmons’ boots on photographs. Such evidence sounds persuasive until examination shows that there can be no consistency or logic to this testimony.. The red marks show v£here voids appear in Simmons’ boots and correspond with voids in the print. Of course, this does not always correspond. This is explained by the statement that the marks on the prints are filled in by the blurring characteristics of the fluid used in taking the prints. We are told that where the voids appear on the picture it proves identity, where they do not it is explained by the process in which the prints are lifted. Many of the red marks are obviously traced from the photograph to appear to be of the same size and design, whereas the actual overlay print demonstrates a different pattern. Some of the red marks enlarge the overlay on Exhibit 24, such as the arrow on the second lug from the left to correspond, not with a void on the photograph but with the blurred print.
It is true the effect of this testimony and these exhibits are for the finder of fact. But where the only evidence available to convict a man and two alleged associates must rest on such inconclusive proof, this court not only has the prerogative but duty to set the verdict aside.
. Paraphrasing these rules:
Whether evidence including reasonable inferences is sufficient to warrant a jury to conclude guilt beyond a reasonable doubt. Dirring v. United States, 328 F.2d 512 (1 Cir. 1964); Parker v. United States, 378 F.2d 641, 1 Cir. May 22, 1967.
Whether there exists sufficient and substantial evidence, taking the view most favorable to government, to support the verdict. United States v. Schipani, 362 F.2d 825 (2 Cir. 1966); United States v. Aadal, 368 F.2d 962 (2 Cir. 1966).
Whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt. Also, whether there is substantial evidence, taking the view of it most favorable to the government, to support the verdict. United States v. Giuliano, 263 F.2d 582, 583 (3 Cir. 1959); United States v. Stirone, 311 F.2d 277, 284 (3 Cir. 1962).
Whether the evidence, construed most favorably for the prosecution, was such that a jury might find the defendant guilty beyond a reasonable doubt. United States v. Wallace, 300 F.2d 525, 531 (4 Cir. 1962).
Whether there is sufficient evidence to permit the trier of facts to find the defendants guilty beyond a reasonable doubt. United States v. Luxenberg, 374 F.2d 241 (6 Cir. 1967).
Whether evidence sufficient to convince a jury beyond a reasonable doubt of defendant’s guilt. United States v. Atnip, 374 F.2d 720, 723 (7 Cir. 1967).
Whether, viewing the evidence in a light most favorable to the government, there is substantial evidence on each element of the offense from which the jury could find that the accused is guilty beyond a reasonable doubt. Pauldino v. United States, 379 F.2d 170 (10 Cir. 1967).
‘Where only circumstantial evidence is involved, it used to be stated that to sustain conviction the proof must negative every hypothesis save that of guilt. But in the Holland case in 1954, the Supreme Court said the better rule is simply to instruct properly on reasonable doubt, and expressed the view that the additional instruction is confusing and incorrect. In the case at bar there was on the evidence in the record a reasonable doubt that Hiet took the property; indeed there was no evidence whatsoever that he took it or carried it away. Without any evidence whatever connecting Hiet with the missing property, I think there is necessarily a doubt (more than a reasonable one, I think) that he took it and carried it away. The doubt is not a visceral or moral one; it is a *509doubt upon the record; the lack of essential proof creates the doubt as a legal matter. So the judgment must be reversed.” Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504, 506 (1966).
. Whether evidence is inconsistent with every reasonable hypothesis of innocence. Thurmond v. United States, 377 F.2d 448 (5 Cir. 1967).
Whether reasonable minds could find that the evidence excludes every reasonable hypothesis but that of guilt. Thomas v. United States, 369 F.2d 372, 373 (9 Cir. 1966).
. See also Wood v. United States, 361 F.2d 802 (9 Cir. 1966). However, this court in post-Holland cases has at least twice given approval to the old rule, see Sykes v. United States, 312 F.2d 232, 235 (8 Cir. 1963) and the first Wood v. United States, 342 F.2d 708, 713 (8 Cir. 1965).
. It is sometimes important to recall Mr. Justice Field’s admonition:
“* * * [T]he act [18 U.S.C. § 3481] was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.” Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650.