dissenting.
The case presents a sufficiency-of-the-evidence question. The essential facts are that appellant-Wells was hitchhiking to Colorado when he was picked up by the complaining witness, Mertz. After a day of socializing and drinking, Mertz authorized Wells to spend the night in his truck, while Mertz retired to his trailer close by. Mertz left the keys in the vehicle, but did not give Wells permission to drive it. The next morning the truck was gone and Mertz reported it stolen. Shortly thereafter the truck was located by Colorado police, who found the property in close proximity to a suspect whom the police apprehended and charged with criminal trespass. When located, the truck contained a backpack and prescription medicine bearing Wells’ name. It must be assumed, of course, that these items were placed in the truck when Wells was picked up on the highway by Mertz. Some time after the location of the property in Colorado, Wells was arrested in Utah.
*205Even if it could be said to be likely that Wells stole the truck, I still have some nagging and, I think, reasonable doubts about whether there is sufficient evidence in the record to sustain the verdict and judgment entered thereon. For me, there are other plausible possibilities with respect to how the truck arrived in Colorado. Wells may simply have walked away, leaving his personal items in the truck — he and Mertz had been on a drinking spree that night! The truck could have been stolen either by the persons apprehended and arrested in Colorado or by others. After all, the record shows the truck was found in Colorado while in the apparent possession of persons who were, according to charges against them, committing criminal trespass, and it was never established that Wells proceeded to Colorado after the night that Mertz allowed him to sleep in the vehicle.
In asking myself what I think really happened, I find myself indulging the thought that, since Wells did not take the stand to rebut the charge or offer any exculpatory explanation, I am moved to wonder if his failure to testify had anything to do with the outcome of the case. In pursuing this fantasy, I recall that Wells admitted at his sentencing to at least one prior crime. Could it be that his attorney advised him not to testify so as to avoid exposing the jury to evidence of his prior conviction(s)? Additionally, I note from the sentencing hearing that Wells is a drifter, which would make it unlikely that he would be able to produce a credible alibi even if innocent. But this speculation is of little moment except that, in this case where there has been established no real circumstantial- or hard-evidence connection between the activities of the defendant and the evil deed, my guessing games having to do with defendant’s innocence seem to me to be just as valid as the guessing games in which the majority indulge in order to uphold his guilt. After all, the State had the burden of proving Wells guilty beyond a reasonable doubt, and in achieving that goal it may not impose on him the burden of rebutting the State’s accusation. Sanchez v. State, Wyo., 567 P.2d 270, 276 (1977).
In reviewing this conviction, our duty is to inquire whether a jury, from the evidence presented (and not from Wells’ failure to rebut the charge), could have found the defendant guilty beyond a reasonable doubt. Chavez v. State, Wyo., 601 P.2d 166 (1979); Gustavenson v. State, 10 Wyo. 300, 68 P. 1006, 1011 (1902); Hayes v. State, Wyo., 599 P.2d 558 (1979); and Pilon v. Bordenkircher, Warden, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979).
This court had occasion to define the reasonable-doubt standard early in its history. In Palmerston v. Territory, 3 Wyo. 333, 23 P. 73, 73 (1890), we took issue with a jury instruction1 which stated in part that
“ ‘. . . The proof is to be deemed sufficient when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction on which they would act in an important affair of their own.’ . . . ”
We pointed out that men of the highest prudence are often forced to choose between alternatives on only a preponderance of the evidence. We then defined the proof-beyond-a-reasonable-doubt standard as:
“. . . ‘[T]he jury must be so convinced by the evidence * * * of the defendant’s guilt that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests, under circumstances where there was no compulsion resting upon him to act at all.’ . . . ” Id. at 23 P. 74.
The United States Supreme Court has defined the reasonable-doubt standard as one which “ ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue,’ ” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, *2061072, 25 L.Ed.2d 368 (1970). Thus, both Winship and Palmerston define the reasonable-doubt standard as requiring a feeling of certitude of the defendant’s guilt — a conclusion that the defendant is probably guilty, or is likely guilty, is not sufficient for a lawful conviction. Moreover, in State v. Rideout, Wyo., 450 P.2d 452, 454-455 (1969), we said:
“. . . [EJvidence creating a mere probability of guilt is not sufficient; much less is evidence which gives rise to mere suspicion or conjecture of guilt. ” 2
I do not believe that a non-clairvoyant trier-of-fact, given the facts of this case, could have possessed that necessary “state of certitude” without having relied upon various impermissible inferences, among which is the one that assumes Wells’ guilt because he failed to rebut the charge.
I would have reversed with directions to dismiss the charge.
. We no longer approve the giving of an instruction defining reasonable doubt, and the giving of such an instruction is likely to be considered reversible error. Cosco v. State, Wyo., 521 P.2d 1345, 1346 (1974).
. In Rideout, we were discussing circumstantial evidence. In the later case of Blakely v. State, Wyo., 542 P.2d 857, 863 (1975), we expressly overruled some of our earlier case law on circumstantial evidence. Nonetheless, I believe the statement from Rideout still applies to either direct or circumstantial evidence in light of the reasonable-doubt standard, supra.