dissenting.
This appeal in my judgment is governed entirely by the unanimous opinion of the Supreme Court in Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Thompson was cited with approval in Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968) (Per Curiam), and has been repeatedly followed by our Court: Pilon v. Bordenkircher, 593 F.2d 264 (6th Cir. Feb. 26, 1979); Blockson v. Jago, 587 F.2d 10 (6th Cir. 1978) (Per Curiam); Salter v. Johnson, 579 F.2d 1007 (6th Cir. 1978) (Per Curiam), cert. denied, 439 U.S. 989, 99 S.Ct. 587, 58 L.Ed.2d 663 (1978); Brooks v. Rose, 520 F.2d 775 (6th Cir. 1975); Ballard v. Howard, 403 F.2d 653 (6th Cir. 1968) (Per Curiam).
The rule of Thompson v. City of Louisville was well stated by the Court, and it is not unclear nor ambiguous:
Decision of this question [due process] turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all. [Emphasis added.] [362 U.S. at 199, 80 S.Ct. at 625.]
And further:
Thus we find no evidence whatever in the record to support these convictions. [Emphasis added.] [Id. at 206, 80 S.Ct. at 629.]
To the same effect is Vachon v. New Hampshire, 414 U.S. 478 (1974) (Per Curiam), and cases therein cited.
*1217I do not regard the decision in In re Winship, 397 U.S. 358 (1970) as modifying in any respect the settled rule. In Winship the Judge, trying a delinquency case involving a juvenile, applied the preponderance of evidence rule for conviction of an offense which, if it involved an adult, would require the application of the reasonable doubt rule. This was clearly error, and the Supreme Court was correct in so holding.
In my opinion the rule in Thompson is binding upon us and we have no right to change or to modify it. We ought not to anticipate that the Supreme Court will change this well-established rule.
And, of course, if we have any regard for the rule of stare decisis, we ought to follow our own decisions. Other panels of the Court should respect them. No panel of this Court has the power or right to overrule the decision of another panel. Timmreck v. United States, 577 F.2d 372, 376 n. 15 (6th Cir. 1978), rev’d on other grounds, - U.S. -, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Particularly ought this to be true with respect to the consistent decisions of other panels in five additional cases. The overruling should be the 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.
The majority opinion in the present case admits that “there is ‘some’ evidence of record which tends to make petitioner’s guilt as to the crime charged more likely than not.” p. 1209 “As we previously stated, there is ‘some’ evidence of record which tends to establish, to a degree, that petitioner is guilty of second degree murder.” p. 1211 It is of the view, however,—
“. . . that the ‘no evidence’ standard of Thompson, as it prevails today, incorporates some notion of degree or weight of evidence.” (p. 1212)
This view, in my judgment, is incorrect.
It is clear that if such an unwarranted view of the majority is ever adopted by the Supreme Court, the federal courts will be deluged with habeas corpus cases seeking to review state court convictions on the weight or sufficiency of the evidence, which review is not permitted at the present time. In sum, as in the present case and in almost every appeal from a state court criminal conviction, there is included an assignment of error that the conviction is against the manifest weight of the evidence and is not supported by sufficient evidence.
A single District Judge, as in the present case, will, if permitted by a change in the rule, pass upon the weight or sufficiency of the evidence, and will draw inferences from circumstantial evidence, which inferences were within the sole domain of the trier of the facts, namely, the state court jury, subject of course to review for errors cognizable under state law, by the state court trial judge, the state court of appeals, and the state supreme court. State court judges are certainly more adept to rule on these matters of state law than are the federal judges.
We ought not to forget the Resolution adopted some time ago by the Conference of Chief Justices of the State Supreme Courts, which Resolution severely criticized the federal practice then prevailing of a single federal District Judge reviewing, as if on direct appeal, and setting aside, as in the present case, a state court conviction that had been affirmed by the highest courts in the state.
Obviously the rule in Thompson was designed to curtail unnecessary federal intrusions upon state court convictions. In order to ameliorate the ill feeling caused thereby, Chief Justice Burger appointed Federal-State Judicial Councils to meet and discuss the problems. To now change the rules, as the majority suggests, the former practice, accompanied by all the ill feeling caused thereby, will certainly be revisited upon us.
Although the majority opinion admits that there was “some” evidence, what it is really complaining about is that there were no eye witnesses to the brutal assault, murder, and theft of the victim’s car. There was, however, an abundance of circumstantial evidence from which the trier of the *1218facts could and did draw inferences as to the assault, theft, and murder. Circumstantial evidence is just as reliable as direct evidence, and could be more reliable because witnesses can lie.
The circumstantial evidence is detailed in the opinion of the state court of appeals, a copy of which opinion is annexed hereto as Exhibit “A”. The instructions to the jury of the learned trial judge are also annexed thereto as Exhibit “B”. No claim was made that these instructions were erroneous.
In brief, the evidence tends to prove that the vicious assault and murder where committed upon the innocent black victim by the two thugs who stole his automobile. This was shown conclusively by the circumstance that the victim was shot from the front with a pistol, and in the back by a shotgun. The victim’s type “A” blood was spattered over the back seat of his automobile. A shotgun was found protruding from under the front seat in the stolen automobile, which seat was occupied by the passenger Speigner. The pistol was never found. It could have been thrown away by Scott, the driver of the stolen car, while Scott was driving to Youngstown. A single individual with a pistol would not ordinarily shoot a person with a pistol, from the front, then use a shot gun to shoot him from the back. At least the jury could and did, rightfully, infer that two persons were involved in the assault, murder, and theft of the car.
The victim’s automobile was stopped by the state highway police for a routine safety inspection, at the Niles-Youngstown interchange of the Ohio turnpike, at 5:02 a. m., on June 26, 1973, because the car appeared to be in an unsafe condition. This interchange is located about an hour’s drive from Cleveland where the body of the victim was found a short time later, lying in a street.
The driver of the victim’s automobile was Roger Scott, who was on parole from an earlier felony conviction in Ohio for grand larceny. Riding in the passenger’s seat was Scott’s confederate, appellant Henry Speigner, alias Frank Mathews, who also was on parole for a previous Ohio felony conviction, namely, upon his plea of guilty to malicious destruction of property and possession of burglary tools. It is again noteworthy that a shotgun was protruding from underneath the seat in the victim’s car occupied by Speigner.
At the time of the safety inspection by the police, Speigner identified himself as Frank Mathews, by exhibiting an alias welfare card. Upon questioning by the police it was stated by Scott that they had borrowed the car from the black victim, William Bell, for fifteen dollars, and both men laughed at the fact that they had been “stuck” with a unsafe vehicle.1 The highway patrol officer verified that the car belonged to Bell. Scott was held in lieu of $50-bond on the unsafe vehicle charge, and because Scott was apparently a parole violator. Speigner was released when he promised to obtain the $50-bail for Scott. Speigner never returned.
Instead, the evidence was to the effect that Speigner traveled to Cleveland, stayed for a few days, and then left for various cities, including San Francisco, Las Vegas, St. Louis, and New York. When apprehended by New York authorities on April 10, 1974, over a year later, and turned over to the Cleveland police, Speigner admitted that he knew that the Cleveland police had been looking for him. He also acknowledged that he knew both the victim, William Bell, and Roger Scott.
An inventory of Bell’s car on the morning of June 26th disclosed that the vent window of the driver’s door had been broken and that glass was scattered on the floor. There were blood stains on the rear seat which matched the victim’s blood type “A”, as well as a bloody fingerprint of undetermined origin on the right front door. In *1219addition, a sawed off shotgun was found protruding several inches from under the front passenger’s seat, which had been occupied by Speigner. A subsequent scientific examination did not indicate any fingerprints on the shotgun, nor was it testfired, as it would not be possible to test the pellets. There was ample proof to establish that Bell was shot in the back by a shotgun, even though the particular shotgun was not received in evidence. Fingerprints of both the victim Bell and Speigner were found on the car, although neither were bloody fingerprints. Finally, the trunk of Bell’s car contained his brief case filled with court documents and checks made out to Bell. Testimony disclosed that Bell had been retained as a filing clerk by a number of Cleveland attorneys, and was subject to call 24 hours a day; and that the items found in his briefcase were the filings for the morning of June 26, 1973. Testimony by Bell’s father indicated that Bell’s car was used all the time by Bell in his business and that Bell would not lend his car to anyone, not even to his brothers. The testimony of Bell’s father was corroborated in part by the testimony of Attorney Summers.
In concluding that the conviction was devoid of evidentiary support Federal District Judge Battisti disagreed with the state trial judge, the state Court of Appeals, and the Supreme Court of Ohio. The state appellate court, in addressing this issue, and after summarizing the circumstantial evidence, stated:
As can be seen from this summary of the state’s case, there was sufficient amount of probative evidence presented to the jury to enable it to find beyond a reasonable doubt that the appellant purposely and maliciously killed William Bell. The state’s evidence, although largely circumstantial, was of such a nature as to be irreconcilable with any reasonable theory of the appellant’s innocence. State v. Kulig, (1974), 37 Ohio St.2d 157 [309 N.E.2d 897]. The trial court acted correctly in not granting a directed verdict to the appellant.[2] [A. 32b]
The Supreme Court of Ohio, in sua sponte dismissing Speigner’s appeal, decided:
75-916 State, Appellee, v. Henry Speigner, Appellant, Cuyahoga County. Appeal from the Court of Appeals. Dismissed sua sponte, no substantial constitutional question involved. O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze, W. Brown, and P. Brown, JJ., concur.
Thus we have a situation where a single Federal District Judge in a collateral attack has overruled and set aside the decisions of the Common Pleas Court, the State Court of Appeals, and the state’s highest court, namely, the Supreme Court of Ohio, the disagreement being over evidentiary issues, namely, circumstantial evidence and the inferences properly deducible therefrom, all of which were properly within the domain of the state courts to determine under state law.
The Supreme Court of Ohio has adopted our standard for review, set forth in United States v. Collon, 426 F.2d 939 (6th Cir. 1970), governing the determination of motions for judgment of acquittal, in State v. Hancock, 48 Ohio St.2d 147, 151-52, 358 N.E.2d 273, 276 (1976), quoting from Collon, as follows:
“In determining the sufficiency of the evidence to withstand a motion for a judgment of acquittal, the evidence and all reasonable inferences that may be drawn therefrom must be viewed in the light most favorable to the government. * * * And if under such view of the evidence it is concluded that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury. However, if under such view of the evidence it is concluded there must be some doubt in a reasonable mind, the motion for acquittal must be sustained.”
*1220See also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Scott, 578 F.2d 1186, 1192 (6th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978).
It is significant that in the state Court of Appeals Speigner’s claim of error was not that his conviction was unsupported by any evidence, but only that his conviction was against the manifest weight of the evidence and was not sustained by sufficient evidence. He made no claim in the state courts that there was not any evidence to support his conviction. The state courts therefore were not called upon and were never given opportunity to rule on the constitutional issue which Speigner raised for the first time in his habeas corpus petition filed in the District Court. He has not exhausted his state remedy.
From the established circumstances it could reasonably be inferred that the shots were fired by two people who had brutally beaten Bell. The two people in Bell’s car when it was stopped by the police shortly after the assault, murder, and theft, were Scott and Speigner. They gave no explanation to the police as to how the front vent window of the car happened tó be broken, or how it happened that blood was spattered on the rear seat of the car and on the right front door. The jury had the right to draw inferences from these established circumstances.
Speigner gave an assumed name, Mathews, to the police when they were stopped near Youngstown; then he left, as he stated, to get bail for Scott, but he never returned; instead, he proceeded to a number of different cities until the police finally caught him in New York, seven months later. This constituted flight.
The jury could find from the evidence that Scott and Speigner were in the exclusive possession of an automobile recently stolen by them from Bell; that the explanation which they gave was unsatisfactory, and indeed was false; that because blood of Bell’s type “A” was found in Bell’s car, Bell was shot in his car, or that his body was placed in his car after he was shot.
In United States v. Jennewein, 590 F.2d 191, 192 (6th Cir. 1978), we stated:
Upon reconsideration it is concluded that the instruction, “[possession of property recently stolen if not satisfactorily explained is . ordinarily a circumstance from which the jury may reasonably draw the inference and find in the light of surrounding circumstances shown by the evidence in this case that the person in possession not only knew it was stolen property but also participated in some way in the theft of the property,” did not misstate the applicable law. See United States v. Nalley, 455 F.2d 259 (6th Cir. 1972); United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970); Prince v. United States, 217 F.2d 838 (6th Cir. 1954), and cases therein cited.
See also Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969); Devitt and Blackmar, Federal Jury Practice and Instructions, Vol. 1 §§ 15, 29, 44.11; 34 O.Jur.2d Larceny § 71. Flight is regarded in Ohio as evidence of guilt unless satisfactorily explained. Temp. 15-A O.Jur.2d Criminal Practice and Procedure § 343. Speigner and Scott’s explanation was not satisfactory. It was a deliberate falsehood.
In his opinion granting the writ the District Judge stated:
However, to find guilt in this case, the jury must have made a series of double inferences, basing one inference upon another. Where one inference is based not upon fact, but only upon conjecture or speculation, and the prosecution’s case is composed entirely of these inferences, there must be reasonable doubt of the defendant’s guilt, and therefore, the prosecution has not proven its case. Cf., United States v. Ravich, 421 F.2d 1196, 1204 n. 10 (2d Cir.), cert. den’d, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970).
This statement presents the issue in the present appeal as to who should draw the inferences from the proven circumstances. It is respectfully submitted that the jury in the state court which heard the evidence *1221and observed the demeanor of the witnesses, had the lawful right and was in a better position to draw the inferences than a single federal judge, examining a cold record. The inferences were drawn from proven circumstances and were not drawn upon conjecture or speculation as was erroneously stated by the District Judge.
In United States v. Johnson, 412 F.2d 787, 788 (6th Cir.), cert. denied, 396 U.S. 993, 90 S.Ct. 489, 24 L.Ed.2d 456 (1969), Judge McCree, who wrote the opinion for the Court, stated:
Nevertheless, possession may be proved circumstantially and may thus serve as the basis for an inference of the other elements of the offense. United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968). Also, possession may be in more than one person. Garrison v. United States, 353 F.2d 94 (10th Cir. 1965); Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967). Although the evidence offered here to establish possession was neither direct nor extensive, it was sufficient to permit the jury to find that appellant was more than a mere passenger in the stolen vehicle. He had been traveling with his brother before the theft and was apprehended with his brother afterwards. The luggage they were observed to possess before the theft somehow had been transferred to the stolen car. The car in which he was seen in Orlando before the theft had apparently been abandoned. We hold that the foregoing evidence sufficed to permit a jury to find that appellant had at least joint possession of the stolen motor vehicle and that from this fact it could infer the other elements of the offense charged in the indictment. Burke v. United States, 388 F.2d 286 (8th Cir. 1968).
See also United States v. Tate, 575 F.2d 1152 (6th Cir.) (Per Curiam), cert. denied, 439 U.S. 856, 99 S.Ct. 170, 175, 58 L.Ed.2d 163 (1978).
Thus, as before related, there was substantial circumstantial evidence tending to prove every crucial element of the crime of murder in the second degree. These circumstances include:
1 Exclusive possession of the recently stolen automobile of the victim, with its rear seat spattered with the victim’s blood;
2 Instead of giving a satisfactory explanation of the possession of the stolen automobile, the explanation given was a deliberate falsehood;
3 Flight.
The District Judge did not explain how, not being in the jury room, he could divine that the jury made a series of double inferences. He was in error in his statement that the prosecution’s case is based on conjecture or speculation, and is composed entirely of a series of double inferences. The wealth of circumstantial evidence hereinbefore related and stated in the opinion of the state appellate court, from which legitimate inferences may be drawn, refutes the statements made by the District Judge and establishes his error.
The jury could have drawn inferences from a number of different facts and circumstances established by the evidence. These are not double inferences, as they were drawn from different circumstances.
The District Court further stated:
The prosecutor’s theory of the case, which evidently assumed (without evidentiary basis) that petitioner and the driver of the victim’s car had robbed and beaten Bell, shot him, and stolen his car, is one explanation for the facts that were proven. It would, however, be equally reasonable to infer that a third person killed Bell in a fight since there is no evidence, direct or circumstantial, connecting petitioner to the time or place of the crime. The defense’s failure to set forth an alternative theory does not mean that the facts “are consistent only with the theory of guilt and irreconcilable with any reasonable theory of [petitioner’s] innocence.’’ State v. Kulig, 37 Ohio St.2d 167 [157], 160 [309 N.E.2d 897] (1974).
In accordance with Ohio law, the trial judge charged the jury that the prosecutor was required to prove that “a person, *1222that is, the Defendant, committed the crime as described to [the jury].” TR. 379-80. However, since there was simply no proof of this element of the crime, the jury should not have been permitted to consider it. Without proof of each and every essential element of the crime charged, the state has not met its burden of proof under Ohio law. State v. Ellis, 61 Ohio L.Abs. 434, 105 N.E.2d 65 (Ct. App. Franklin [County] 1951). A conviction which does not satisfy the state standard certainly fails to afford the due process guaranteed by the fourteenth amendment to the federal constitution. [A. 61b]
It is obvious from the above that the District Judge has denied the state court jury the right to draw inferences from the proven circumstances, and arrogates to himself the right to draw inferences different from those drawn by the jury, which inferences he admits to be equally reasonable to the inferences which he has drawn. The District Judge did not follow the state law and the decisions of this Court that the evidence must be considered in the light most favorable to the government. The state standard was satisfied as the state courts held. There was substantial evidentiary basis for the state’s case, as we have recited herein. Much of the evidence supporting the conviction is not even mentioned by the District Judge in his opinion.
It is submitted that no constitutional violation of Speigner’s rights can be found in his state court conviction.
The crime of murder is not ordinarily committed in the presence of witnesses. In many criminal cases the state must rely on circumstantial evidence in order to obtain a conviction. Circumstantial evidence is just as trustworthy as direct evidence, and is regarded by many as more trustworthy because eye witnesses will lie sometimes.
The inferences to be.drawn from proven circumstantial evidence are drawn by the trier of the facts, the juries in criminal cases, and cannot be drawn by either state or federal Judges. The Judges have no right to substitute their judgment for that of the jury on the factual issues. Under the proven circumstances in the present case, and the inferences logically deducible therefrom, the verdict of the jury finding Speigner guilty of second degree murder was supported by substantial evidence, as was held by all of Ohio’s courts. Likewise, it is for the state jury to determine whether the evidence is beyond a reasonable doubt and the judgment of conviction affirmed by the state’s highest courts cannot be collaterally attacked in the federal courts.
It is interesting to note that Scott and Speigner were tried separately in the Court of Common Pleas of Cuyahoga County, Ohio. They were each convicted by juries, Scott of murder in the first degree, and Speigner of murder in the second degree. They were each sentenced to life imprisonment. Both appealed to the Court of Appeals of the Eighth District of Ohio, which Court sits in Cleveland. On appeal each asserted, among other errors, that his conviction was against the manifest weight of the evidence. The appellate court affirmed Speigner’s conviction on July 31, 1975, and modified Scott’s conviction on November 24, 1975, by reducing it to murder in the second degree, and affirmed it as modified.
Scott’s habeas corpus petition was heard by District Judge Walinski of the Northern District of Ohio, Western Division. In his petition Scott relied on errors other than the weight or sufficiency of the evidence. Judge Walinski denied the writ and we affirmed by order in Scott v. Perini, 6 Cir., 564 F.2d 100, on October 18, 1977, panel Phillips, Chief Judge, Peck, Circuit Judge, and Gray, Senior District Judge.
Since the decision of the majority affirms the judgment of the District Court, Judge Battisti granting the writ of habeas corpus, Speigner is set free and cannot be retried (as the state has no eye witnesses) except that he may be tried—
on the various non-murder charges that are suggested by the evidence contained in the present record.
[Majority opinion, p. 1215.]
These “non-murder charges” are assault and theft of the victim’s automobile. Theft *1223may be inferred by possession of a recently stolen automobile without giving any satisfactory explanation. The majority does not explain how circumstantial evidence could possibly convict Speigner on the non-murder and theft charges if it was insufficient, as the majority holds, to convict him on the murder charge.
The result of the holding of the majority also presents a very anomalous situation where Speigner’s confederate, Scott, is denied a writ of habeas corpus on substantially the same evidence, by a Judge sitting in the Western Division of the Northern District of Ohio, and our Court, by a different panel except for the Judge who wrote the majority opinion in the present ease, affirms the denial of the writ to Scott. Scott’s confederate, Speigner, however, filed his petition for writ of habeas corpus which was heard by a different District Judge (Judge Battisti, who sits in the Eastern Division of the Northern District of Ohio), and Judge Battisti granted the writ, and upon appeal the majority in the present case affirms.
We can all rest assured, however, that as soon as Scott learns of the good fortune of his confederate Speigner, he will file a new habeas petition so that he likewise can be set free. We ought not to denigrate circumstantial evidence which was adequate to convict both Scott and Speigner. It certainly can never be said that the judgments of conviction were not supported by “any evidence at all.” Thompson, 362 U.S. at 199-206, 80 S.Ct. 624.
The cause of justice will be promoted only when the two murderers of William Bell are punished for their crimes. The crime wave existing in Cleveland will never be curtailed if Federal Courts persist in intruding upon and setting aside state court convictions approved by the state’s highest court, and upon such unsubstantial grounds as exist in the present case.
I would reverse the judgment of the District Court granting the writ of habeas corpus to Speigner, so that the two murderers of William Bell will receive the same punishment for the crimes which they committed.
EXHIBIT “A”
In his first assignment of error the appellant contends that the verdict finding him guilty of second degree murder is against the weight of the evidence. He argues that the evidence adduced at trial against him is insufficient to support a conviction. We disagree. The first assignment of error is not well taken.
A summary of the key testimony in the case will disclose just what the state’s evidence consisted of and how it was sufficient to enable a jury of reasonable persons to find the appellant guilty of second degree murder beyond a reasonable doubt.
Doctor Charles Hirsch of the Coroner’s Office testified that the causes of the death of the victim, William Bell, were a gunshot wound to the chest and a shotgun wound to the back. Doctor Hirsch indicated that the victim had suffered many broken ribs and scrapes, and that he had died sometime late on the evening of June, 25, 1973 or sometime early in the morning on June 26, 1973. Doctor Hirsch also testified that the victim had type “A” blood.
Mary Cowan of the Trace Evidence Department of the Coroner’s Office testified that both shots fatal to Bell had been fired at close range, and that a residue test administered to the hands of the victim indicated either that he had fired a weapon before he died or that possibly residue from a gun fired at him had come to rest on his hands.
A Mr. Larue Perryman testified that on the morning of June 26, 1973 a lady told him there was a body laying in the street. He testified that he went to the body, which was laying at E. 75th and Platt Ave. in the City of Cleveland, and that after he saw it he then called the police. Perryman identified the body he saw on the morning of June 26, 1973 as that of William Bell.
Sergeant Donald R. Little of the Ohio State Highway Patrol testified that on June 26, 1973 he was working on the Ohio Turnpike, that at about 5:02 a. m. he observed a 1964 Chevrolet Nova approach the *1224toll booths for the Niles-Youngstown interchange, that he observed the car to be an unsafe vehicle and therefore stopped it, that there were two occupants of the car, a driver named Roger L. Scott and a passenger identified as the appellant, and that he ascertained that the owner of the vehicle was one William Bell of Cleveland. Sergeant Little indicated that neither Scott nor the appellant could produce proof of ownership of the car and that Scott told him that they had borrowed the car from William Bell for $15. Little further testified that he arrested Scott but that the appellant was released, that at the time he was released the appellant stated to him (Little) that he was going to obtain bond money for Scott, but that the appellant never returned to bail out Scott. Sergeant Little further testified that he and Patrolman Hawkins conducted a routine inventory of the 1964 Nova; that in doing so they found a bloody fingerprint on the right hand passenger door and a large smudge of blood on the upper left portion of the rear seat; that he found an attache case in the trunk of the car filled with court documents and checks belonging to William Bell or bearing the name of William Bell; that Patrolman Hawkins found a sawed-off shotgun underneath the front seat on the passenger side, and that they observed that the glass was broken out of the vent window located on the left front driver’s door of the car. Little indicated that he had stopped the appellant and Scott approximately sixty miles from downtown Cleveland.
Patrolman Robert Hawkins of the Highway Patrol essentially corroborated the testimony of Sergeant Little. Hawkins described the blood on the upper left portion of the rear seat as being at about shoulder height. One of the exhibits admitted into evidence indicated that the victim had a gaping shotgun wound in the upper left portion of his back just below his left shoulder. Hawkins described for the jury how he found the sawed-off shotgun under the front passenger seat of the car.
John Busher of the Automobile Title Department of the Cuyahoga County Clerk’s Office testified that the owner of the 1964 Nova was the victim, William Bell.
Robert Bell, the victim’s father, and William Summers, an attorney who was one of the users of the victim’s court filing service, both presented testimony inconsistent with the statement of Roger Scott to Sergeant Little that Bell had made a loan of his car for $15. Robert Bell testified that his son William never let his brothers use his car. Summers testified that the victim’s filing service required him to be on call twenty-four hours a day and required him to use a car.
Detective John Lavelle of the Cleveland Police Department testified that he and his partner Timothy Patton had investigated this homicide and that they had taken custody of the appellant from the New York City Police Department on April 10, 1974. Detective Lavelle stated that while in custody and after he had been advised of his rights the appellant had told him that he (the appellant) knew the Cleveland Police were looking for him, that between June 26, 1973 and April 10, 1974 he had been in Cleveland, San Francisco, Las Vegas, St. Louis and New York City, that he knew the deceased William Bell, and that he knew Roger Scott.
Lawrence Palahunic of the Scientific Investigation Unit of the Cleveland Police Department was the last state’s witness. He testified that the bloodstains found on the upper left portion of the rear seat of the 1964 Nova consisted of type “A” blood.
Although the sawed-off shotgun was not admitted into evidence by the trial court, several state’s witnesses gave testimony, heard by the jury, identifying it and describing the conditions under which it was found while attempting to lay a foundation for the shotgun’s admission. Therefore, even though the jury was not able to take the shotgun to the jury room with it, it had ample testimony on this item of evidence anyway.
As can be seen from this summary of the state’s case, there was a sufficient amount of probative evidence presented to the jury to enable it to find beyond a reasonable doubt that the appellant purposely and maliciously killed William Bell. The state’s evidence, although largely circumstantial, *1225was of such a nature as to be irreconcilable with any reasonable theory of the appellant’s innocence. State v. Kulig (1974), 37 Ohio St.2d 157 [309 N.E.2d 897]. The trial court acted correctly in not granting a directed verdict to the appellant.
EXHIBIT “B”
[From Common Pleas Court Judge’s instruction to the jury]
Now, there are two kinds of evidence, generally speaking. One is positive and direct, and the other is circumstantial.
That which is positive or direct is that which we see or hear with our senses or we feel it with our hands or through a sense of feeling. So if a witness testifies from his personal knowledge to the commission of an act or any circumstances to be proven in order to establish an offense, that is called direct and positive evidence.
Now, it is not always possible to ascertain the truth by evidence of this character. Hence, the law permits the introduction and consideration of what is called circumstantial evidence.
Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. That is different from the direct or positive evidence, when you say, “I saw something, I saw this, I saw that, I heard this, I felt this.”
So from the positive evidence that you may have heard, you have the right to infer other facts reasonable facts or conclusions which usually follow the facts that you have heard.
Circumstantial evidence is the proof of facts by direct evidence from which you may infer other reasonable facts or conclusions.
In the absence of direct evidence, circumstantial evidence by itself will justify a finding of guilty only if the circumstances are entirely consistent with the Defendant’s guilt, or wholly inconsistent with any reasonable theory of the Defendant’s innocence and are so convincing as to exclude a reasonable doubt of the Defendant’s guilt.
Where the evidence is both direct and circumstantial, the combination of the two must satisfy you of the Defendant’s guilt beyond a reasonable doubt.
On drawing inferences, you may not make one inference from another inference, but you may draw more than one inference from the same facts or circumstances. If the circumstances create inferences that are equally consistent with either innocence or guilt, such inferences must be resolved in favor of the Defendant’s innocence.
I think an illustration was given to you by one of the counsel, that if you come into this building, when you come in, all of the streets outside are dry, the tops of the roofs are dry and the tops of automobiles are dry, and you do not have an opportunity to look out, but when you go outside the street is covered with snow or automobiles are covered with snow, you didn’t see it snow because you didn’t look, but you have a right to infer what is reasonable, that it did snow while you were inside. That is what we mean by circumstantial evidence. It is a law of inference based upon proven facts.
If the circumstances create inferences that are equally consistent with either innocence or guilt, such inferences must be resolved in favor of the Defendant’s innocence.
Now, in the illustration the Court gave you, you would not have a right to go ahead and infer what time it snowed and the kind of snow, and that sort of thing, unless you had some facts outside that you saw by direct evidence upon which you could base your inference.
You are the sole judges of the weight to be given to the circumstantial evidence, as you are to the direct evidence.
When circumstantial evidence is of the nature and character that it satisfies and convinces the minds of the jury beyond a reasonable doubt, then such circumstantial evidence alone is sufficient upon which to base a verdict of guilty.
However, to warrant you in finding the Defendant guilty on circumstantial evidence alone, each material and important link in the chain of circumstances relied upon for conviction must be proven to your satisfaction beyond a reasonable doubt.
. Scott testified in his separate trial that Speigner told him that he, Speigner, had borrowed the car from Bell; that he, Scott, knew nothing of Bell’s death. This testimony conflicted with statements which Scott had earlier given to police. Appellee’s App. 64b, filed in Scott v. Perini, Sixth Circuit Court of Appeals.
2. In the same opinion the state Court of Appeals affirmed another judgment of the Common Pleas Court which sentenced Speigner to the Ohio penitentiary for violation of his parole on a previous conviction upon his plea of guilty to the crime of malicious destruction of property and possession of burglary tools.