Dissenting Opinion
Jackson, J.I am unable to concur in the majority opinion and dissent thereto.
Appellant’s motion for new trial contained two grounds, viz:
“1. The decision of the Court is contrary to law;
2. The decision of the Court is not sustained by sufficient evidence.”
The assignment of errors is the single specification:
“The Court erred in overruling appellant’s Motion For A New Trial.”
Without weighing the evidence the same may be summarized as follows: Appellant was found in the building, there was no evidence that anything had been stolen or taken, there was no evidence that the appellant had any felonious intent when he entered the building, there is no evidence that he intended to take any property whatsoever from the building. Appellant had in his pocket a chisel when found on the property. There was also evidence that he was in possession of a crowbar, that evidence as to the crowbar is conflicting, but need not be here discussed or decided for there is no evidence that either the .crowbar or chisel were used by appellant. There were some marks on one of the vending machines but no evidence as to just when or by whom they were made.
On appeal we do not weigh the evidence below but we are permitted to review the evidence to determine if it is supported by sufficient evidence of probative value to sustain the judgment below. King v. State (1968), 249 Ind. 699, 234 *202N. E. 2d 465; Freeman v. State (1967), 249 Ind. 211, 281 N. E. 2d 246; LaMar v. State (1953), 231 Ind. 508, 109 N. E. 2d 614.
I am of the opinion the conviction of the appellant had to result from an inference upon speculation. Under the law of this state such a conviction cannot and should not be sustained.
It has long been held that opportunity alone is not sufficient to sustain a conviction. Accepting the evidence most favorable to the state as true, that evidence does not exclude every other reasonable hypothesis except that of guilt. Crawford v. State (1968), 251 Ind. 437, 241 N. E. 2d 795; Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445; Osbon v. State (1938), 213 Ind. 413, 13 N. E. 2d 223.
The case should be reversed and remanded with instructions to grant appellant’s, motion for a new trial.
DeBruler, C.J., concurs.
Note. — Reported in 252 N. E. 2d 498.