At a jury trial in the state court, petitioner Henry Speigner was convicted of second degree murder under O.R.C. § 2901.05.1 After unsuccessfully exercising his rights to direct appeal, Speigner petitioned the district court for a writ of habeas corpus. The district judge, in granting the writ, concluded that petitioner’s conviction was “totally devoid of evidentiary support.”
The present case is a difficult one because of the small quantum of evidence presented to support petitioner’s conviction of second degree murder. On the one hand, there is “some” evidence of record which tends to make petitioner’s guilt as to the crime charged more likely than not.2 On the other hand, and contrary to the conclusion of the state appellate court, the totality of the evidence against petitioner does not amount to evidence sufficient to support, as a matter of law, guilt beyond a reasonable doubt. Thus, the present case requires this Court to carefully delineate the extent to which a federal court is obligated to review, under Fourteenth Amendment due process, a state criminal conviction.
EVIDENCE OF RECORD
A review of the trial transcript reveals that the victim, William Bell, was murdered either late in the night of June 25, 1973, or early in the morning of June 26, 1973. His body, which had been badly beaten, was found lying in a street in Cleveland, Ohio, at approximately 7:00 a. m., June 26. It was established at trial that Bell had died of two fatal gun shots, a .32 caliber pistol shot from the front and a shotgun blast from the back.
During trial the state presented evidence that a highway patrolman had stopped *1210Bell’s automobile for a routine safety inspection at 5:02 a. m. on June 26, 1973, at a location approximately one hour’s drive from the spot where the victim’s body was found. When the vehicle was stopped, Speigner was a passenger in the automobile. He identified himself by use of an alias, Prank Mathews, and he presented the patrolman with a welfare card. In the course of the officer’s questioning of the driver of the car, Roger Scott, Scott stated that he had rented the vehicle from the victim for $15. Speigner heard Scott’s statement, and both men laughed at the fact that they had been “stuck” with an unsafe vehicle. Certain evidence presented at trial specifically refuted the rental story offered by the driver. First, testimony disclosed that Bell had used his car in his business and that he had followed a rule of never lending it to anyone, not even his brothers. Further, various checks and documents were found in a briefcase in the trunk of Bell’s car, and these items were to be filed by the victim on the morning of June 26, 1973.
Speigner was released after a short detention by the highway patrol, but he stated he would return and post a $50 bond for the driver Scott. Without fulfilling this promise, Speigner left the Cleveland area within a few days. During the period of the next ten months, Speigner traveled to various cities across the country, including San Francisco, Las Vegas, St. Louis and New York City. When he was apprehended by New York police on April 10, 1974, Speigner stated that he was aware the Cleveland police had been looking for him and he admitted that he had been acquainted with both the victim Bell and Scott, the driver of the vehicle.
An inventory of the victim’s car was conducted in the morning hours of June 26, 1973. This inventory revealed a shattered vent window on the driver’s side of the vehicle, window glass on the front floor, blood stains of the victim’s type (A) on the rear seat, a bloody fingerprint of an undetermined origin on the right front door, and a sawed-off shotgun under the seat which Speigner had been occupying. Subsequent scientific examination of the shotgun did not, in any way, connect the gun to petitioner and the gun was not test fired or otherwise proven to be the murder weapon.
THE “NO EVIDENCE” STANDARD
In reviewing the district court’s grant of a writ of habeas corpus, we are obligated to adhere to the prevailing standard of review in habeas corpus proceedings, the so-called “no evidence” standard, enunciated by the Supreme Court in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Therein, the Court concluded that a state violates a defendant’s constitutional due process when it convicts the defendant of a crime without evidence to support an essential element of the crime. 362 U.S. at 204, 80 S.Ct. 624. Cf. Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Harris v. United States, 404 U.S. 1232, 1233, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971).
The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.
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Under the words of the [city] ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law.
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Just as “conviction upon a charge not made would be sheer denial of due process,” so is it a violation of due process to convict and punish a man without evidence of his guilt.
Thompson, supra, 362 U.S. at 199, 204, 206, 80 S.Ct. at 625, 628, 629.
*1211On a superficial level of analysis, the “no evidence” standard of Thompson appears to quickly dispose of the present appeal. As we previously stated, there is “some” evidence of record which tends to establish, to a degree, that petitioner is guilty of the crime of second degree murder. For example, the victim’s automobile was stopped at 5:02 a. m., a few hours after his murder, a short distance from the place where his body was discovered. At that time, blood stains of the victim’s type were in the car; a bloody but unidentified fingerprint was on the door; a sawed-off shotgun was under the passenger’s seat; a vent window was shattered and glass was strewn on the floor. From this evidence, a jury could reasonably infer that the victim’s car might have been at the scene of his murder. When we add to this inference the facts that petitioner was a passenger in the vehicle when it was stopped at 5:02 a. m., that he was seated directly over the shotgun, and that he later admitted knowing both the victim and the driver of the vehicle, we must conclude that the record in this case contains “some” evidence relevant to the elements of second degree murder.
On a deeper level of analysis, however, the “no evidence” standard of Thompson does not automatically bar petitioner’s request for relief. In decisions subsequent to Thompson, the Supreme Court has interpreted the “no evidence” standard in a manner not consistent with the narrow, literal meaning of the words, “no evidence.” In these decisions, the Court has given the Thompson standard a more flexible construction, one which takes into account the fact that in virtually every criminal prosecution there is “some” evidence of record to support a conviction.
Two cases, Vachon v. New Hampshire, supra, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974), and Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968) (per curiam), illustrate the current meaning of the Thompson standard. In Johnson a defendant had been found guilty of vagrancy under a Florida statute that made it unlawful to be found “wandering or strolling” from place to place without any lawful purpose or object. At trial, the state had established that the defendant had been seated on a park bench at 4:25 in the morning; that just prior to his arrest the defendant had told the officers that he was waiting for a bus; that the buses had stopped service some five and one-half hours prior to the defendant’s arrest; and that, when questioned by the officers, the defendant offered no explanation of what he had been doing for the previous three hours. This evidence notwithstanding, the majority of the Court concluded “ . . . that so far as the ‘wandering or strolling’ ingredient of the crime is concerned, the record is lacking in any evidence to support the judgment.” 391 U.S. at 598, 88 S.Ct. at 1715. As to the single evidentiary fact that the defendant had been seated on a park bench, allegedly for some three hours, Mr. Justice White wrote in dissent, “Most inhabitants of park benches reach their bench by wandering or strolling.” 391 U.S. at 599, 88 S.Ct. at 1715 (White, J., dissenting). In Vachon v. New Hampshire, supra, a ease decided some six years after Johnson, the Supreme Court again adopted a flexible interpretation of the Thompson standard. In Vachon the operator of the Head Shop in Manchester, New Hampshire, had been convicted of contributing to the delinquency of a minor in violation of a state statute. The minor had purchased a button inscribed “Copulation Not Masturbation” at the Head Shop from an unidentified salesperson who may or may not have been the defendant. The majority of the Court, in vacating the state’s judgment of conviction, concluded that the record was “completely lacking” in evidence on the element of wilfulness, an essential element of the charge. 414 U.S. at 479, 94 S.Ct. 664. The Court reached this conclusion despite the facts that the defendant, according to his own trial testimony, had controlled and operated the shop on the day of the sale in question; that the button sold to the minor had been prominently offered for sale on a velvet display card on a counter in the shop; and that the same type of button had been previously purchased at the shop during the time the *1212defendant was its operator. 414 U.S. at 486, 94 S.Ct. at 668 (Rehnquist, J., dissenting).
Decisions such as Vachon and Johnson implicitly recognize that a federal court’s review of a state trial record must be, to a certain extent, a matter of degree. Recognition of this fact is essential if habeas corpus review of evidentiary matters is to fulfill any meaningful purpose. Although trial records at times contain only small amounts of circumstantial and highly speculative evidence, virtually every record contains “some” evidence, in an absolute sense, that tends to establish the guilt of the accused. Thus, if the Supreme Court were to exclude all notions of degree from habeas corpus review, the Thompson “no evidence” standard would be rendered an Iron Curtain type blockade in the path of every state prisoner who seeks federal court review of the evidence supporting his conviction.
Even though the Supreme Court, in decisions such as Va chon and Johnson, has implicitly rejected a rigid interpretation of the “no evidence” standard, the absolute language of the Thompson decision continues to pose a fundamental dilemma. When a federal court denies a petitioner habeas corpus relief, the court can simply cite the language of the Thompson standard and refer to an “iota of evidence” found in the state trial record. See, e. g., Brooks v. Rose, 520 F.2d 775, 777 (6th Cir. 1975). However, when a federal court grants a petitioner habeas corpus relief, the court is frequently forced to ignore certain relevant evidence in order to make its decision consistent with the literal meaning of the words, “no evidence.” In view of the continuing nature of this dilemma, we are convinced that it is time to forthrightly recognize that the “no evidence” standard of Thompson, as it prevails today, incorporates some notion of degree or weight of evidence.3 Consistent with this recognition, I would disavow the literal interpretation of the “no evidence” standard adopted by this Circuit in Brooks v. Rose, supra, and would adopt the dissenting views of Judge McCree therein.4 In Brooks, despite the existence of some speculative evidence that the defendant was sane at the time of the acts in question, the record was without evidentiary support within the context of the Fourteenth Amendment.5 As Judge McCree wrote:
I respectfully dissent. The question presented by this appeal is whether a jury may arbitrarily disregard overwhelming and uncontradicted expert *1213opinion evidence that a defendant was insane when he committed the act for which he was tried, and find him sane beyond a reasonable doubt solely on the basis of eyewitness testimony of his behavior that afforded no direct evidence of his mental state and permitted only speculative inferences about it. I would hold that this conviction is without evidentiary support of a critical element of the offense charged and that it therefore offends the due process guarantee of the Fourteenth Amendment.
520 F.2d at 780 (McCree, J., dissenting).
Turning once again to the evidence of record in the present case, and in the light of our reasoning above, we conclude that the record before us lacks the required evidentiary support for petitioner’s conviction of second degree murder. First, there is no evidence of record to indicate the length of time that petitioner was in the victim’s car when it was stopped at 5:02 a. m. on June 26, 1973. Second, other than the fact that petitioner had been sitting directly over the shotgun found underneath a seat in the victim’s car, there is no evidence that connects petitioner to the gun. In fact, the only piece of identifying evidence produced in regard to the gun is a blond hair and petitioner is black. Third, there is no evidence that the shotgun found in the victim’s car was the shotgun used in the victim’s murder. Finally, there is no evidence either to establish that petitioner had recently used a gun of any kind or that petitioner had recently been involved in a fight, when he was stopped on June 26, 1973. In summary, although there is evidence to constitutionally support a finding that petitioner committed some crime, for example possession of a stolen vehicle or obstruction of justice,6 the record on appeal does not constitutionally support a finding that petitioner actually killed or participated in the killing of the victim, an essential element of second degree murder under O.R.C. § 2901.05.
CONCLUSION
In Thompson v. City of Louisville, supra, the Supreme Court considered the extent to which the Due Process Clause of the Fourteenth Amendment requires a federal court to review the evidence supporting a state criminal conviction. In its decision in Thompson, the Court set forth what has come to be called the “no evidence” standard of review. As is apparent from the absolute language of the Thompson decision, the “no evidence" standard was designed to prevent any unwarranted intrusions by the federal courts into the process of state criminal trials. Although the standard has effectively furthered this purpose, a literal meaning of the standard virtually eliminates the very function served by habeas corpus review of evidentiary records.
Practically speaking, in every criminal prosecution, there is “some” evidence of record, in an absolute sense, that tends to establish the guilt of the accused as to the crime charged, As a result of this fact, when the Thompson “no evidence” standard is applied in a literal manner, the result invariably is the dismissal of the state prisoner’s request for federal court relief. It is true that the Supreme Court has repeatedly adhered to the absolute language of the Thompson decision; yet in a number of decisions relying on Thompson, the Court has implicitly recognized the potentially restrictive impact of the “no evidence” language. In short, the Supreme Court, in decisions subsequent to Thompson, has given the “no evidence” standard a flexible construction; one which does not openly comprehend the principles of “sufficiency of evidence,” but one which does not rigidly adhere to a “totally devoid of evidentiary support” standard. See, e. g., Vachon v. New Hampshire, supra; Johnson v. Florida, supra. We conclude that the substance of *1214the “no evidence” standard, as it has been developed in decisions such as Va chon and Johnson, must prevail over the form of its language.
Recently the Supreme Court granted certiorari in the Fourth Circuit opinion of Jackson v. Virginia, 439 U.S. 1001, 99 S.Ct. 609, 58 L.Ed.2d 676, in part to review the “no evidence” standard in relation to the holding of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Mr. Justice Brennan, writing for the majority in Winship, strongly asserted the “constitutional stature” of the principle of “guilt beyond a reasonable doubt.”
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
397 U.S. at 364, 90 S.Ct. at 1073. Two years ago, Mr. Justice Stewart, in his persuasive dissent in Freeman v. Zahradnick, 429 U.S. 1111, 97 S.Ct. 1150, 51 L.Ed.2d 566 (1977) (denial of a grant of certiorari), suggested that the holding of the Court in Winship may have effectively modified the Thompson standard.
The Winship case held that the Due Process Clause requires proof beyond a reasonable doubt of every element of a criminal offense. A jury must be instructed accordingly. Properly instructed juries, however, occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt — even when it is clear that the defendant was entitled to a directed verdict of acquittal as a matter of law. In a federal trial, such improper application of law (as defined by Winship) to fact requires reversal of the conviction on the ground of insufficient evidence.
The power of a federal court to review the application of federal law to the facts as found also operates, however, in criminal cases originating in state courts. On direct review of a state court conviction, this Court reviews the application of the “voluntariness” standard to the historical facts to determine whether a confession was admissible, or the application of First Amendment standards to the facts as found to determine whether the conduct in issue was constitutionally protected, to take but two examples. The same rule is applied in federal habeas corpus actions. See generally Townsend v. Sain, 372 U.S. 293, 318 [83 S.Ct. 745, 9 L.Ed.2d 770]; Brown v. Allen, 344 U.S. 443, 506-507 [73 S.Ct. 397, 97 L.Ed. 469] (opinion of Frankfurter, J.). It is not immediately apparent why application of the beyond a reasonable doubt standard of Winship to the historical facts should be any more immune from constitutional scrutiny. If, after viewing the evidence in the light most favorable to the State, cf. Glasser v. United States, 315 U.S. 60, 80 [62 S.Ct. 457, 86 L.Ed. 680] a federal court determines that no rational trier of fact could have found a defendant guilty beyond a reasonable doubt of the state offense with which he was charged, it is surely arguable that the court must hold, under Winship, that the convicted defendant was denied due process of law.
What I am suggesting is simply that the question whether there was sufficient evidence to support a finding by a rational trier of fact of guilt beyond a reasonable doubt may be of constitutional dimension. Such a view would not require federal courts to second-guess state court findings of fact or a State’s definition of the elements of a crime. Rather, the federal courts would no more than perform a familiar and appropriate role — reviewing the application of a substantive federal standard (the requirement of proof beyond a reasonable doubt) to the historical facts.
429 U.S. at 1112-1113, 97 S.Ct. at 1150-1151. In its Jackson decision, the Supreme Court may well adopt a “sufficiency of evidence” standard for habeas corpus review, in accordance with the above reasoning of Mr. Justice Stewart.
*1215However, we do not decide the present case on the basis of a conjecture of what the Supreme Court will decide in the future. We conclude that under the prevailing “no evidence” standard of Thompson v. City of Louisville, as interpreted in cases such as Vachon v. New Hampshire and Johnson v. Florida, petitioner is entitled to habeas corpus relief. In so deciding, we do not deem it necessary to determine the applicability of the “totally devoid of evidentiary support” standard relied upon by the district court. Moreover, our decision today does not restrict any option open to the State of Ohio to try petitioner on the various non-murder charges that are suggested by the evidence contained in the present record. The district court’s issuance of a writ of habeas corpus is affirmed, for the reasons stated above.
. Petitioner Henry Speigner was indicted by the Grand Jury of Cuyahoga County, Ohio, in April 1973, for the crime of murder in the first degree, in violation of former O.R.C. § 2901.01. Petitioner was convicted of the lesser included offense of murder in the second degree under O.R.C. § 2901.05.
2901.05 (12403). Murder in second degree.
No person shall purposely and maliciously kill another. Whoever violates this section, except in the manner described in sections 2901.01, 2901.02, 2901.03, and 2901.04 of the Revised Code, is guilty of murder in the second degree and shall be imprisoned for life.
. Rule 401, Federal Rules of Evidence reads as follows:
Definition of “Relevant Evidence.”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
. For example, if to make a case, it is necessary to prove that a defendant was in a given Cincinnati motel room at a particular time in question, testimony that he was in the State of Ohio would clearly be “no evidence" as to the critical fact. Testimony placing him in the building, however, might present a close question; while evidence that the defendant had gotten off the elevator on the particular floor of the motel within the crucial time frame would properly support a jury’s finding in the face of a constitutional challenge.
. But see Judge Edwards' concurring opinion and Judge Weick’s dissenting opinion, infra.
The dissenting opinion herein states that "no panel of this Court has the power or right to overrule the decision of another panel.” The opinion concludes that “[t]he overruling should be a function of an en banc court, and not that of a single panel, unless a subsequent Supreme Court decision overrules the decision on which the panel relied." However, there is no rule in this Circuit which requires an en banc hearing to overrule a decision of a three-judge panel. Further, such requirement has not been followed in practice by this Court. See, e. g., United States v. Bess, 593 F.2d 749 (6th Cir. 1979); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). Finally, the wisdom of such requirement is questionable. The existence of the machinery for an en banc hearing serves as a necessary and effective check on one panel’s power to overrule another panel’s decision. However, it would be a waste of judicial time and resources to automatically require an en banc hearing each and every time this Court overrules or modifies one of its previous decisions.
. Although I would reverse the decision of Brooks v. Rose, 520 F.2d 775 (6th Cir. 1975), 1 do not suggest that expert testimony supporting a finding of insanity can be refuted only by expert testimony to the contrary. Rather, I conclude simply that in Brooks the particular testimony relied upon to establish the defendant’s sanity was so overwhelmed by the opposing testimony of legal insanity that the result was “no evidence” for the purpose of Fourteenth Amendment due process.
. In addition to the evidence previously considered in the text, the record below contains evidence that petitioner cooperated with the driver Scott in giving a false rental story and that petitioner evaded the Cleveland police for some ten months after his June 26, 1973, release. Although these facts may tend to prove that petitioner committed some crime, they do not tend to prove that petitioner committed the crime of second degree murder.