Dissent
Jackson, J.I cannot agree with the conclusions reached in the majority opinion and dissent thereto.
*628The majority opinion admits that there is no direct evidence of the appellant’s guilt. The uncontradicted evidence of all the witnesses for the State is that none of them ever saw appellant with any of the merchandise alleged to have been stolen. There is no evidence that appellant was ever in possession of the merchandise alleged to have been taken, nor is there any evidence of any kind that appllant knew or could have known that the merchandise alleged to have been stolen was in the automobile belonging to Jilean Stallings. Not a single one of the State’s witnesses, including the clerks in the store, testified that appellant was seen with any merchandise. Each of these witnesses did testify they did not see appellant with any merchandise. It is significant that appellant and Jilean Stallings were also observed by the attendant in the parking lot going to the car belonging to Jilean Stallings, but there was no testimony or evidence from him or any one else, that they then, or at any other time, were in possession of the property allegedly stolen.
At sometime during the afternoon two policemen were called to the Tower Parking Lot where they observed the automobile belonging to Jilean Stallings. The officers saw, through the open window of the car, a brown paper sack containing what looked like a man’s suit and some sweaters or shirts. After waiting some two or three hours the officers observed appellant and Mrs. Stallings proceeding in the direction of the parking lot, at which time the officers arrested the appellant and her companion, Mrs. Stallings. The officers admitted at the time of the arrest that they saw no crime committed, and that neither appellant or her companion had with them any of the merchandise. It is admitted by the State that the officers had no information that either appellant or her companion had committed any crime, nor did the officers have a warrant for the arrest of appellant or her companion.
We are not compelled in the case at bar to weigh the evidence to determine the issues in this case. There is a total *629lack of evidence as to the guilt of the appellant, and this being a criminal case, the law requires the guilt of the appellant to be proven beyond any reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N. E. 2d 641; Lindley v. State (1929), 201 Ind. 165, 166 N. E. 661; Acts 1905, ch. 169, § 261, p. 584, § 9-1806, Burns’ 1956 Replacement.
Some authority is cited in the majority opinion on the proposition that “. . . a conviction can rest entirely upon circumstantial evidence if there is substantial evidence of probative value. . . .” In criminal cases there is no inference or presumption of guilt. On the contrary the innocence of the defendant is presumed until guilt is proven beyond a reasonable doubt.
The fact situation in this case does not permit the application of the dubious principles of law cited in the majority opinion for the reason that there is no substantial evidence of probative value in the case at bar that points to the guilt of the appellant.
It is well established that a verdict of guilty must be supported by evidence in proof of every element of the offense charged.
The courts have held that the true test by which to determine the value of circumstantial evidence in respect to its sufficiency to warrant a conviction in a criminal case, is not whether the proof establishes circumstances which are consistent, or which coincide with the hypothesis of the guilt of the accused, but whether the circumstances, satisfactorily established, are of so conclusive a character, and point so surely and unerringly to the guilt of the accused as to exclude every hypothesis of his innocence. Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445; Hiner v. State (1925), 196 Ind. 594, 149 N. E. 168; Cavender v. The State (1890), 126 Ind. 47, 25 N. E. 875.
Mention is made in the majority opinion “[a]t the time *630they were stopped they told the officers that they had come to town in a taxi.” Other than a statement to that effect by an officer, the only testimony relative to a taxi was that of the appellant who testified she had come from home by taxi, that she met Jean Stallings at the corner of Harrison and Wayne Streets.
In addition to the infirmities heretofore pointed out in this dissent, the unlawful arrest of appellant in violation of her constitutional rights, alone, requires a reversal of the judgment herein.
After reviewing, not weighing, all the evidence in the record it is clearly apparent that the evidence is insufficient to support the verdict, and therefore the verdict is contrary to law. The judgment should be reversed and the cause remanded to the trial court with instructions to sustain appellant’s motion for a new trial.